The Cake Syndicate Pty Ltd

[2022] FWCA 1100

[2022] FWCA 1100

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

The Cake Syndicate Pty Ltd

(AG2022/557)

The Cake Syndicate Pty Ltd (trading as Susan Day Cakes) Enterprise Agreement 2021-2024

Food, beverages and tobacco manufacturing industry
DEPUTY PRESIDENT GOSTENCNIK	MELBOURNE, 29 MARCH 2022

Application for approval of the The Cake Syndicate Pty Ltd (trading as Susan Day Cakes) Enterprise Agreement 2021-2024

1. An application has been made by The Cake Syndicate Pty Ltd pursuant to s.185 of the Fair Work Act 2009 (the Act) for approval of a single enterprise agreement known as the The Cake Syndicate Pty Ltd (trading as Susan Day Cakes) Enterprise Agreement 2021-2024 (the Agreement).

1. Question 20 on the Form F17 indicates that the employer notified the relevant employees of the voting details on 10 February 2022. Question 25 on the Form F17 indicates that the date that voting for the Agreement commenced was 17 February 2022. Therefore, the 7-day access period started on the first full day after 9 February 2022. As such, the employer did not notify the relevant employees of the voting details by the start of the access period in accordance with s.180(3) of the Act. In addition, the notice does not appear to specify the location of the vote as required by s.180(3)(a).

1. The employer acknowledges that the vote process followed did not meet the requirements of ss.180(3) and 180(3)(a) of the Act, however, submits that these concerns can be remedied by s.188(2) of the Act, noting specifically:

·   To the extent that the vote notice did not comply with subsection 180(3)(a), this is a minor technical error in circumstances where employees well understood the manner and method of the vote, being that the voting process would follow the same process as one previously undertaken in December 2021;

·   The vote commencing 2 hours and 20 minutes early is a minor procedural error; and

·   No disadvantage has been caused to any employee by reason of the errors.

1. The employer outlined a range of factors demonstrating why the Commission can be satisfied the employees were not disadvantaged by reason of the errors and the Agreement was genuinely agreed to by the employees covered by it, despite noncompliance with ss.180(3) and 180(3)(a) of the Act.

1. In the circumstances and having regard to the submissions of the employer and the decision in Huntsman Chemical Company Australia Pty Limited T/A RMAX Rigid Cellular Plastics & Others[1], I am satisfied that the errors constitute minor procedural errors for the purpose of s.188(2)(a). Further, I am satisfied that the employees covered by the Agreement were not likely to be disadvantaged by the errors.

1. I am satisfied that each of the requirements of ss.186, 187 and 188 as are relevant to this application for approval have been met.

1. The United Workers’ Union, a bargaining representative for the Agreement, has given notice under s.183 of the Act that it wants the Agreement to cover it. In accordance with s.201(2) I note that the Agreement covers the organisation.

1. The Agreement is approved and, in accordance with s.54 of the Act, will operate from 5 April 2022. The nominal expiry date of the Agreement is 1 July 2024.

DEPUTY PRESIDENT

[1] [2019] FWCFB 318

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