Wesbeam Pty Ltd

[2019] FWCA 2278

[2019] FWCA 2278

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Wesbeam Pty Ltd
(AG2018/6583)

WESBEAM PTY. LTD. ENTERPRISE AGREEMENT (WESTERN AUSTRALIAN) OPERATIONS 2018-2022

Timber and paper products industry
DEPUTY PRESIDENT BEAUMONT	PERTH, 9 APRIL 2019

Application for approval of the Wesbeam Pty. Ltd. Enterprise Agreement (Western Australian) Operations 2018-2022.

[1] Wesbeam Pty Ltd has made an application for the approval of an enterprise agreement known as the Wesbeam Pty. Ltd. Enterprise Agreement (Western Australian) Operations 2018-2022 (the Agreement). The application was made under s 185 of the Fair Work Act 2009 (Cth) (the Act), and the Agreement is a single enterprise agreement.

[2] There was an issue regarding compliance with s 173(3) of the Act. The last copy of the notice of employee representational rights (Notice) issued by the Employer was not issued until 19 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).

[3] 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 Notice as soon as practicable, and not later than 14 days after the notification time.2

[4] The Notice was provided to employees on 27 June 2018. The notification of agreement to bargain was 8 June 2018.

[5] 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 Notice 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 Notice, employees were provided with a reasonable period before bargaining commenced to exercise their representational rights.

[6] 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

[7] I am satisfied in the circumstances of this case that the failure to provide the last Notice 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.

[8] The Employer has provided written undertakings. A copy of the undertakings is attached in Annexure A. In compliance with s 190(4) of the Act, the bargaining representative’s views regarding the undertakings proffered were sought. They were provided with the opportunity to raise and address any objections they had to the undertakings. No objection was raised.

[9] The Applicant made an application pursuant to s 586 of the Act for the Commission to amend the Agreement to ensure compliance with the signature requirements. In support of this application, the Applicant provided an amended signature page for the Agreement. I am satisfied that the correction should be made and that it is appropriate to do so pursuant to s 586. The amended signature page is included in the published Agreement.

[10] 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.

[11] 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.

[12] The Construction, Forestry, Maritime, Mining and Energy Union, and the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (together, the organisations), being bargaining representatives for the Agreement, have given notice under s 183 of the Act that they want the Agreement to cover them. In accordance with s 201(2), and based on the statutory declarations provided by the organisations, I note that the Agreement covers the organisations.

[13] The Agreement was approved on 9 April 2019 and, in accordance with s 54, will operate from 16 April 2019. The nominal expiry date of the Agreement is 8 October 2022.

DEPUTY PRESIDENT

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].

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