Veolia Environmental Services (Australia) Pty Ltd T/A Veolia Environmental Services

[2019] FWCA 1645

[2019] FWCA 1645

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement

Veolia Environmental Services (Australia) Pty Ltd T/A Veolia Environmental Services
(AG2018/3261)

VEOLIA ENVIRONMENTAL SERVICES (WA), WORKSHOP ENTERPRISE AGREEMENT 2018 - 2021

Manufacturing and associated industries
DEPUTY PRESIDENT BEAUMONT	PERTH, 14 MARCH 2019

Application for approval of the Veolia Environmental Services (WA), Workshop Enterprise Agreement 2018 - 2021.

[1] An application has been made for approval of an enterprise agreement known as the Veolia Environmental Services (WA), Workshop Enterprise Agreement 2018 - 2021 (the Agreement). The application was made pursuant to s 185 of the Fair Work Act 2009 (Cth) (the Act). It has been made by Veolia Environmental Services (Australia) Pty Ltd. The Agreement is a single enterprise agreement.

[2] The Employer has provided written undertakings. A copy of the undertakings is attached in Annexure A. I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement and that the undertakings will not result in substantial changes to the Agreement.

[3] The copy of the notice of employee representational rights (NERR) issued by the Employer was not issued until 21 days after the notification time. It is therefore the case that the Commission is unable to conclude, having considered s 188(1), that the Agreement has been genuinely agreed to. Consideration therefore turns to s 188(2).

[4] A failure to comply with a procedural requirement will constitute a ‘procedural error’ within the meaning of s 188(2)(a). 1 A procedural requirement is one which requires an employer to follow a particular process or course of action. For example, providing employees with a NERR as soon as practicable, and not later than 14 days after the notification time.2

[5] The NERR was provided to employees on 7 February 2018. The first bargaining meeting was held on 14 March 2018.

[6] The underlying purpose of s 173(3) is ensure that the relevant employees understand their representational rights within a reasonable period before bargaining commences thus allowing them to exercise those rights in a timely manner. 3 Where employees received the NERR later than the 14 day period, it may be the case that this prevented them from attending initial bargaining meetings, and therefore may keep them from effectively influencing the bargaining process even after they participate.4 However, there was no evidence before me to suggest that this was the case. I am satisfied that, notwithstanding the delay in providing the last NERR, employees were provided with a reasonable period before bargaining commenced to exercise their representational rights.

[7] The Full Bench in Huntsman outlined that what constitutes a ‘minor’ error calls for an evaluative judgment having regard to the underlying purpose of the relevant procedural or technical requirement which has not been complied with and the relevant circumstances. 5

[8] I am satisfied in the circumstances of this case that the failure to provide the last NERR in the requisite period was a minor procedural requirement in light of that which has been observed. The relevant employees were unlikely to be disadvantaged by such error, and I do not consider it to be one that stands in the way of the approval of the Agreement.

[9] Subject to the undertakings referred to above, and on the basis of the material contained in the application and accompanying statutory declaration, I am satisfied that each of the requirements of ss 186, 187, 188, and 190 as are relevant to this application for approval have been met.

[10] The Agreement was approved on 14 March 2019 and, in accordance with s 54, will operate from 21 March 2019. The nominal expiry date of the Agreement is 13 March 2022.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

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Annexure A

 1   Huntsman Chemical Company Australia Pty Limited T/A RMAX Rigid Cellular Plastics & Others [2019] FWCFB 318 (‘Huntsman’).

 2   Fair Work Act 2009 (Cth) s 173(3); Huntsman[2019] FWCFB 318, [117].

 3   Huntsman [2019] FWCFB 318, [74].

 4   Ibid.

 5 Ibid [117].