Tomlinson Energy Service Pty Ltd

[2022] FWCA 803

[2022] FWCA 803

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Tomlinson Energy Service Pty Ltd

(AG2022/497)

Tomlinson Energy Service Pty Ltd (South Australia) Enterprise Agreement 2022 - 2026

Manufacturing and associated industries
COMMISSIONER PLATT	ADELAIDE, 7 MARCH 2022

Application for approval of the Tomlinson Energy Service Pty Ltd (South Australia) Enterprise Agreement 2022 - 2026

1. An application has been made for approval of an enterprise agreement known as the Tomlinson Energy Service Pty Ltd (South Australia) Enterprise Agreement 2022 - 2026 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act) by Tomlinson Energy Service Pty Ltd (the Applicant). The agreement is a single enterprise agreement.

1. The matter was allocated to my Chambers on 1 March 2022.

1. On 3 March 2022, I conducted a telephone conference with the parties to seek clarification about aspects of the Agreement.

1. In my review of the Agreement, it was noted that the Notice of Employee Representational Rights (NERR) issued by the Applicant deviated from the form required by the Act by providing a reference for questions to or the Fair Work Australia Infoline, instead of the Fair Work Ombudsman or the Fair Work Commission.

1. During the conference on 3 March 2022, I heard submissions from the company and the Australian Workers’ Union (AWU) as to why I should exercise my powers under s.188(2) of the Act to approve the Agreement despite the NERR deficiency. Specifically:

·   All but one employee to be covered by the Agreement was represented by the AWU.

·   No employee was disadvantaged by the deficiency in the NERR, and any error was a minor technical error which had no effect on genuine agreement.

1. I accept that the deficiency in the NERR did not disenfranchise any employee who was to be covered by the proposed Agreement during the bargaining process. This was confirmed by both individual employee bargaining representatives for the Agreement who provided their views in respect of the NERR deficiency. It appears that there was little (if any) adverse impact arising from the error in the NERR. I am satisfied (taking into consideration s.188(2) of the Act and the decision in Huntsman Chemical Company Australia Pty Limited T/A RMAX Rigid Cellular Plastics & Others) that the procedural or technical error is minor and that the employees were not likely to have been disadvantaged, and accordingly, that there has been a genuine agreement.

1. The AWU, being 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) of the Act I note that the Agreement covers this organisation.

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

1. The Agreement is approved and, in accordance with s.54 of the Act, will operate from 7 days after the date of approval of the Agreement. The nominal expiry date is 3 February 2026.

COMMISSIONER

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