Wesbeam Pty Ltd T/A Wesbeam

[2020] FWCA 5166

[2020] FWCA 5166

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Wesbeam Pty Ltd T/A Wesbeam
(AG2020/2637)

WESBEAM PTY LTD & CFMMEU ENTERPRISE AGREEMENT (VICTORIAN OPERATIONS) 2020-2022

Timber and paper products industry
DEPUTY PRESIDENT CLANCY	MELBOURNE, 25 SEPTEMBER 2020

Application for approval of the Wesbeam Pty Ltd & CFMMEU Enterprise Agreement (Victorian Operations) 2020-2022.

[1] An application has been made for the approval of an enterprise agreement known as the Wesbeam Pty Ltd & CFMMEU Enterprise Agreement (Victorian Operations) 2020-2022 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Wesbeam Pty Ltd (the Applicant). The Agreement is a single enterprise agreement.

[2] The Agreement does not cover all of the employees of the Applicant, however, taking into account the factors in s.186(3) and s.186(3A) I am satisfied that the group of employees was fairly chosen.

[3] I have noted that the Notice of Employee Representational Rights (NERR) indicated that the name of the enterprise agreement the Applicant was bargaining for was the Wesbeam Pty Ltd Enterprise Agreement Victoria. As to this, the Applicant says that the title of the Agreement was subsequently discussed, updated and agreed during the bargaining process with the employees and the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU), being a bargaining representative for the Agreement. The Applicant submits that any minor error in departing from the name included in the NERR can be characterised as a negotiated outcome agreed to by it, the CFMMEU and a valid majority of employees and is a minor change that does not have any actual or potential impact on the scope of the Agreement or the terms and conditions of employees who will be covered by it. It submits that the minor change did not impact on the capacity of the employees to participate in the negotiation process.

[4] Further, the NERR describes the scope of the employees proposed to be covered by the Agreement as the “Production and Despatch Timber workforce” whereas the ultimate scope described in the Agreement is “All employees who are engaged in the classifications specified in the Agreement and work at Wesbeam Pty Ltd’s Dandenong site in the State of Victoria.” As to this, the Applicant advised that Schedule A of the Agreement, as negotiated for inclusion, relevantly includes five classifications in which employees covered by the Agreement can be employed and that those five classifications included in Schedule A capture the production and despatch timber workforce in its Victorian operations. Further, the NERR states that the Agreement would relate to Victoria and cover production and despatch timber employees. The Applicant submits that the purpose of the NERR was clear insofar as it was intended to commence negotiations for an Enterprise Agreement to apply to its production and despatch timber employees in Victoria and the Agreement makes clear that it applies to employees who work in the production and despatch timber workforce its Victorian operations in Dandenong, which is its only operation in Victoria. The Applicant submits that any error in the NERR is minor and did not impact the negotiations for the Agreement and nor has it impacted upon the terms and conditions of employment for employees covered by the Agreement or the negotiations for those terms and conditions (which related to the same workgroup at all times). As such, the Applicant submits any error did not cause any disadvantage for those employees.

[5] The Applicant further submits that the Commission can be satisfied, having regard for the information supplied with the Application, that the employees to be covered by the Agreement genuinely agreed to the Agreement, notwithstanding any minor technical or procedural errors related to the NERR.

[6] Having regard to these submissions and noting the duration of the period of bargaining and that all employees who were covered by the Agreement at the time of the vote in fact voted, I am satisfied that the employees were not likely to have been disadvantaged and that the Agreement has been genuinely agreed notwithstanding these minor technical errors. 1

[7] On the basis of the material contained in the application, accompanying statutory declaration, 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.

[8] Pursuant to s.205(2) of the Act, the model consultation term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.

[9] The CFMMEU, 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) and based on the statutory declaration provided by each of the CFMMEU, I note that the Agreement covers the CFMMEU.

[10] The Agreement is approved and, in accordance with s.54, will operate from 2 October 2020. The nominal expiry date of the Agreement is 3 October 2022.

DEPUTY PRESIDENT

 1   Fair Work Act 2009, s.188(2).

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