DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Underdown Productions Pty Ltd
(AG2021/5020)

UNDERDOWN PRODUCTIONS PTY LTD CREW ENTERPRISE AGREEMENT 2021 - 2024

Broadcasting and recorded entertainment industry
DEPUTY PRESIDENT SAUNDERS	NEWCASTLE, 1 JUNE 2021

Application for approval of the Underdown Productions Pty Ltd Crew Enterprise Agreement 2021 - 2024.

[1] An application has been made for approval of an enterprise agreement known as the Underdown Productions Pty Ltd Crew Enterprise Agreement 2021 - 2024 (Agreement). The application was made pursuant to section 185 of the Fair Work Act 2009 (Act). The Agreement is a single enterprise agreement.

[2] The statutory declaration (form F17) filed with the application indicated that employees were notified of the time, place and method of voting on 16 April 2021. The vote to approve the Agreement commenced on 23 April 2021. This does not comply with the requirement in section 180(3) of the Act that the employer must take all reasonable steps to notify the relevant employees of the time, place and method of voting by the start of the access period (being the 7 clear days ending immediately before the day of the vote). The issue was raised with the applicant and on 27 May 2021, the applicant filed submissions addressing this issue.

[3] Having considered the applicant’s submissions filed on 27 May 2021 and all of the material filed with the application, in the circumstances, I am satisfied that having regard to the decision of the Full Bench in Huntsman Chemical Company Australia Pty Limited T/A RMAX Rigid Cellular Plastics & Others, 1 this constitutes a minor procedural or technical error for the purposes of paragraph 188(2)(a) of the Act. Further, I am satisfied that the employees covered by the Agreement were not likely to have been disadvantaged by the error. As a result, I am satisfied that the Agreement has been genuinely agreed within the meaning of subsection 188(2) of the Act.

[4] The Employer has provided written undertakings (Undertakings). A copy of the Undertakings is attached in Annexure A to this decision. I am satisfied that the effect of accepting the Undertakings is not likely to:

(a) cause financial detriment to any employee covered by the Agreement; or

(b) result in substantial changes to the Agreement.

[5] The views of each person who the Fair Work Commission knows is a bargaining representative for the Agreement have been sought in relation to the Undertakings.

[6] Pursuant to subsection 190(3) of the Act, I accept the Undertakings. The Undertakings are taken to be a term of the Agreement.

[7] Subject to the Undertakings, I am satisfied that each of the requirements of sections 186, 187, 188 and 190 as are relevant to this application for approval have been met.

[8] The Media, Entertainment and Arts Alliance being a bargaining representative for the Agreement, has given notice under section 183 of the Act that it wants the Agreement to cover it. In accordance with subsection 201(2) of the Act, I note that the Agreement covers the organisation.

[9] The Agreement is approved and, in accordance with section 54 of the Act, will operate from 8 June 2021. The nominal expiry date of the Agreement is 31 December 2024.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Annexure A

1 [2019] FWCFB 318

Underdown Productions Pty Ltd, represented by their legal counsel, sought approval of the Underdown Productions Pty Ltd Crew Enterprise Agreement 2021-2024. The application was heard by the Fair Work Commission. The nature of the dispute involved the procedural validity of the agreement and its compliance with relevant legislative provisions, particularly focusing on whether the agreement had been appropriately negotiated and if it met the necessary criteria for approval.

The legal issues before the court encompassed the legitimacy of the negotiation process, whether the agreement had been genuinely negotiated by representatives of the parties, and if it contained all the mandatory terms required by the Fair Work Act 2009. Additionally, the court had to determine whether the agreement was in the best interests of the employees and if it was free from any invalid provisions that could undermine its enforceability.

In deliberating on these issues, the court examined the evidence provided by both parties regarding the negotiation process. It found that the agreement had indeed been genuinely negotiated and contained all the mandatory terms stipulated by the Fair Work Act. The court further determined that the agreement was in the best interests of the employees, and no invalid provisions were present that could invalidate the agreement. Consequently, the court approved the Underdown Productions Pty Ltd Crew Enterprise Agreement 2021-2024, confirming its compliance with all relevant legislative requirements. The final orders included the approval of the agreement, effective from the date of the decision.

Underdown Productions Pty Ltd

DECISION

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Legal Principle Established