Application for approval of the Geofabrics Australasia Pty Ltd (South East Qld Manufacturing) Collective Agreement 2024

[1] Geofabrics Australasia Pty Ltd ("the Employer") has applied for approval of an enterprise agreement known as the Geofabrics Australasia Pty Ltd (South East Qld Manufacturing) Collective Agreement 2024 ("the Agreement"). The Application was made under s.185 of the Fair Work Act 2009 ("the Fair Work Act"). The Agreement is a single enterprise agreement.

[2] A party's application for the Commission's approval of an enterprise agreement must be accompanied by a signed copy of that agreement.[1] A copy of an enterprise agreement is a signed copy only if it is signed by the employer covered by the agreement and at least 1 representative of the employees covered by the agreement, and it includes each signatory's full name and address, and an explanation of their authority to sign.[2]

[3] In this case, the Employer's application was accompanied by a copy of the Agreement. The signatory page did not state the signatories' addresses. In relation to employee representatives, the page included signatures from Ms Alison Rudman and Mr Rohan Webb, each appearing in signature blocks under the words

"Signed on behalf of the Employees of GEOFABRICS AUSTRALASIA PTY LTD, ACN 005 479 961, by its authorised representative:"

[4] Ms Rudman's signature block stated that her position was "District Secretary." Immediately after the signature block the following words appeared:

The above person is authorised to sign this agreement on behalf of the employees for the following reasons:

[5] Mr Webb's signature block gave a fuller statement of his position, "AMWU State Secretary, QLD & NT." It was followed by:

The above person is authorised to sign this agreement on behalf of the employees for the following reasons:

AMWU State Secretary - Queensland & northern Territory as the representative of members of the AMWU covered by this Agreement

[6] The employer subsequently supplied two revised signatory pages. The first provided an address for the employer's signatory, and provided Mr Webb's address. The space under "The above person is authorised to sign this agreement on behalf of the employees for the following reasons:" was left blank. The second provided an address for the employer's signatory, and provided both a fuller statement of Ms Rudman's position, and her address. The space under "The above person is authorised to sign this agreement on behalf of the employees for the following reasons:" was again left blank.

[7] Even with the revised signatory pages, it arguable that the Agreement has been signed as required under section 185(2)(a) of the Fair Work Act when read with Regulation 2.06A of the Fair Work Regulations 2009 (Cth) ("the Regulations"). In that regard, in CFMMEU v Griffiths Cranes Pty Ltd[3] Commissioner McKenna, in her minority decision, stated:[4]

[122] ... the Agreement as filed with the Commission identified on the signature page that an official of the CFMMEU signed the Agreement "FOR THE UNION". The authority of an employee organisation in relation to enterprise agreement-related matters typically derives from employee bargaining representative status - and reg.2.06A(2)(b)(ii) requires "an explanation of the person's authority to sign the agreement".

[123] There are countless examples of enterprise agreements which have been properly executed by a union in a way that is reg.2.06A-compliant. For example, in the approval decision concerning an application for the approval of the Civil Construction Agreement 2018-2022, 59 the union signatory information on the signatories' page records an explanation of the person's authority to sign that particular agreement as follows:

"I am authorised by Australian Workers' Union (Victorian Division) to sign this Agreement as a bargaining representative on behalf of the Employees covered by the Agreement."

[8] In light of those remarks, it is possible that because the signatory pages do not state that the three union signatories signed in their capacity as bargaining representatives, and no other employee representative signed the Agreement, the Application may not have been strictly compliant with the provisions of the Fair Work Act and the Regulations referred to above. It is not in dispute, and there is no doubt, that each of those two unions was a bargaining representative.[5]

[9] On the other hand, if the three signatory pages are read together it is clear that the two unions assert that they represent the relevant employees. Unions representing employees in bargaining, as bargaining representatives, is clearly contemplated by the statutory scheme. In my view these descriptions are sufficient to meet the requirement to explain each of the union signatories' authority to sign.

[10] However, in an abundance of caution, and to the extent necessary to do so:

(a) I exercise the power in section 586 of the Fair Work Act,[6] under paragraph (a) and/or (b) of that section, to correct any error in the application, and/or waive any irregularity in the form or manner in which it has been made, arising out of the signatories' initial omission of their addresses, the form or content of the explanation of the union signatories' authority to sign the agreement, or the omission of any explanation of same; and

(b) I also exercise the power in section 218A of the Fair Work Act to correct or amend an obvious error, defect or irregularity by including with the Agreement the two revised signatory pages filed on 1 April 2025, with all three of the signatory pages to be read together.

[11] In my view the power under section 218A of the Fair Work Act can be exercised at the time of approval.[7] Now, having made those corrections, I will deal with other matters that must be considered.

Non-compliance with the Statement of Principles

[12] The Fair Work Act requires the Commission to make a Statement of Principles for employers, on ensuring that employees have genuinely agreed to an enterprise agreement.[8] Before approving an enterprise agreement the Commission must be satisfied that the agreement has been "genuinely agreed to by the employees covered by the agreement."[9] In determining whether it is so satisfied, the Commission must take the Statement of Principles into account.[10]

[13] Paragraphs [15] and [16] of the Statement of Principles relate to providing employees with a reasonable opportunity to vote on a proposed agreement in a free and informed manner, including by informing the employees of the time, place and method for the vote. The employer concedes the Statement of Principles applied. It concedes that it did not comply with the Statement of Principles in that it failed to state the place and method of the vote in the voting instructions emailed to employees. Nonetheless it submits that the Commission can be satisfied that the Agreement has been genuinely agreed, given 24 of 25 employees participated. As to the method of the vote, the employer also submitted the vote was conducted by secret ballot.

[14] Neither union party opposed this submission. The employees were not likely to have been disadvantaged by the non-compliance referred to above. Having taken account of the Statement of Principles and noting the non-compliance, I nonetheless find that the Agreement has been genuinely agreed to by the employees covered by it.

[15] Section 188(5) of the Fair Work Act provides that the Commission may disregard minor procedural or technical errors in relation to certain provisions of the Act. It is not necessary to exercise this power in this case given the Employer's non-compliance was with only the Statement of Principles and not those sections of the Act.

[16] By consent the employer submitted that section 205A of the Fair Work Act does not apply, having regard to sub-clause 8.3.8 of the Agreement. I accept that submission.

[17] In light of the foregoing, and after having regard to the Statement of Principles as well as the application and declarations filed in this matter, I am satisfied that each of the requirements of ss.186, 187, and 188 of the Act as are relevant to this application for approval have been met.

[18] Noting sub-clause 1.3.5 of the Agreement, I am satisfied that the more beneficial entitlements of the National Employment Standards ("NES") in the Act will prevail where there is an inconsistency between the Agreement and the NES.

[19] Each of the following organisations, being a bargaining representative for the agreement, has given notice under s 183 of the Act that it wants to be covered by the Agreement:

(a) "Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU); and

(b) The Construction, Forestry and Maritime Employees Union (CFMEU).

[20] In accordance with s. 201(2) of the Act, and relying on the organisations' declarations, I note that the Agreement covers each of those organisations.

[21] The Agreement is approved and will operate in accordance with s.54 of the Act. The nominal expiry date of the Agreement is 30 June 2027.

[1] Fair Work Act 2009 s 185(2)(a).

[2] Fair Work Act 2009 s 185(5) and Fair Work Regulations 2009 (Cth) r 2.06A.

[3] [2019] FWCFB 1717.

[5] Application for approval of an enterprise agreement filed by Geofabrics Australasia Pty Ltd on 21 February 2025; Declaration of employee organisation (form F18) filed by Construction, Forestry and Maritime Employees Union - Manufacturing Division - NSW on 24 February 2025; Declaration of employee organisation (form F18) filed by the "Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU) on 25 February 2025.

[6] See Australian Nursing and Midwifery Federation v Uniting Church in Australia Property Trust (Q.) [2020] FWCFB 848, [128]-[129], applying CFMMEU v Griffiths Cranes Pty Ltd [2019] FWCFB 1717, [40]-[46].

[7] By analogy with The State of Victoria [2020] FWCA 5215 in which the similar power under section 217 of the Fair Work Act 2009 (Cth) was exercised at the time of approval.

[8] Fair Work Act 2009 (Cth) s 188B.

[9] Fair Work Act 2009 (Cth) subs 186(2)(a).

[10] Fair Work Act 2009 (Cth) subs 188(1).

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