Williams Refrigeration Australia Pty Ltd

[2021] FWCA 5267

[2021] FWCA 5267

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Williams Refrigeration Australia Pty Ltd
(AG2021/6675)

WILLIAMS REFRIGERATION AUSTRALIA PTY LTD ENTERPRISE AGREEMENT 2021

Manufacturing and associated industries
COMMISSIONER LEE	MELBOURNE, 25 AUGUST 2021

Application for approval of the Williams Refrigeration Australia Pty Ltd Enterprise Agreement 2021.

[1] An application has been made for approval of an enterprise agreement known as the Williams Refrigeration Australia Pty Ltd Enterprise Agreement 2021 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Williams Refrigeration 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. The undertakings are taken to be a term of the agreement.

[3] Subject to the undertakings referred to above, 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.

[4] I note that the notice of employee representational rights (NERR) provided to employees was printed on the employer’s letterhead, contains additional information regarding the structure of the “Enterprise Agreement Negotiating Committee”, and replaces the word “employer” with the name of the Operations Manager in the paragraph titled “Questions?”. As such, the NERR does not contain the content prescribed by the Fair Work Regulations 2009 in accordance with s.174(1A) of the Act. The Employer made the following submissions in relation to this issue, which I have considered:

“It is not likely that relevant employees were disadvantaged by the defects because there is strong evidence to suggest that a vast majority of employees (at least) were aware of their right to be represented in bargaining. Specifically:

a. The AMWU: was the default bargaining representative; was an active bargaining participant; is a signatory to the agreement; and filed a Form F18 in support of the agreement;

b. A separate employee “Enterprise Agreement Negotiating Committee” was established and participated in bargaining, which provided an alternate source of knowledge around bargaining and opportunity for input into bargaining for employees; and

c. The defects did not result in any critical information being removed from the prescribed form.”

[5] I am satisfied having regard to those submissions and the Full Bench decision in Huntsman Chemical Company Australia Pty Ltd T/A RMAX Rigid Cellular Plastics & Others 1that the above matter constitutes minor procedural or technical error for the purposes of s.188(2)(a). Further, I am satisfied that the employees covered by the Agreement were not likely to have been disadvantaged by the error.

[6] Accordingly, notwithstanding the matter identified in paragraph [4] above, I am satisfied that the Agreement has been genuinely agreed to by the employees covered by the Agreement within the meaning of s.188 of the Act.

[7] The “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) 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) I note that the Agreement covers the organisation.

[8] I observe that the following provisions are likely to be inconsistent with the National Employment Standards (NES):

•  Clause 15.3 – Deductions upon Termination.

•  Clause 19.4 – Absence before or after a public holiday.

•  Clause 20.1 – Annual Leave.

However, noting clause 9 of the Agreement, I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

[9] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 1 September 2021. The nominal expiry date of the Agreement is 30 April 2024.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

<AE512870  PR733183>

Annexure A

 1   [2019] FWCFB 318.