[1] An application has been made for approval of a single enterprise agreement known as the Amapro-W&B Pty Ltd Enterprise Agreement 2025 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). The application has been made by Prysmian Australia Pty Ltd, which appears to hold "Amapro - W&B" as a business name (employer).

[2] The Australian Manufacturing Workers' Union (AMWU), being a bargaining representative for the agreement, has given notice under s.183 that it wants the Agreement to cover the AMWU. In accordance with s.201(2) I therefore note that the Agreement covers the AMWU. By way of declaration in Form F18, the AMWU has supported the approval of the Agreement and indicated that it is of the view that the Agreement passes the better off overall test.

[3] Prior to approving the agreement, it was necessary to raise three matters with the bargaining representatives.

[4] Firstly, the redundancy provision at clause 21.4 of the Agreement stipulates that the employer does not need to pay redundancy where the employee rejects an employment offer with the transmittee that recognises the period of continuous service the employee had with the transmitter. The bargaining representatives were informed that this expression appeared to be narrower than the comparable NES provision at section 122(3)(ii) of the Act, which stipulates the necessary recognised period as service, rather than continuous service. It was explained to the bargaining representatives that, because the Agreement contains a NES precedence clause (at clause 3.2(c)), this did not present a barrier to approval however an opportunity to provide an undertaking was offered. No undertaking was offered.

[5] Secondly, whilst the Agreement was not expressed to cover trainees, there was a reference to trainees in clause 21.5 as a class of employees who were excluded from redundancy pay. The Agreement, which incorporates the Manufacturing and Associated Industries and Occupations Modern Award 2020, contained no rates of pay for trainees. It was confirmed that the Agreement did not and was not intended to cover trainees, so no better off overall test issue arose concerning the absence of rates of pay for them.

[6] Thirdly, and more significantly, it appeared that no Notice of Employee Representational Rights (NERR) was provided to any of the employees covered by the Agreement. The circumstances of this were that the employer was aware of its obligation to provide the NERR and indeed had prepared one. It was intended that the NERR that was prepared be attached to an e-mail to employees that contained information about bargaining and also provided other attachments. Relevantly, the covering e-mail stated that the NERR was attached. There is no suggestion that the failure to provide the NERR at this time was anything other than a clerical mishap. Within five days after the sending of the e-mail, the NERR was posted "on the lunchroom general noticeboard and the union noticeboard". It was submitted, in reliance on section 188(5), that the failure to provide an NERR was a minor procedural or technical error that was unlikely to have disadvantaged employees.

[7] Section 188(5) operates in a similar way to section 188(2) of the Act did prior to the commencement of Part 14 the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022. The similarity lies in providing a pathway to find that an agreement has been genuinely agreed to as required by section 188 notwithstanding "minor procedural or technical errors" in complying with particular pre-approval requirements. In considering section 188(2) of the Act as it then was, a Full Bench agreed with a submission that "what constitutes a minor error calls for an evaluative judgement having regard to the underlying purpose of the relevant procedural or technical requirement which has not been complied with and the relevant circumstances".[1]

[8] The underlying purpose of providing an NERR is expressly stated in section 173 of Act, which is to "give notice of the right to be represented by a bargaining representative to each employee who (a) will be covered by the agreement and (b) is employed at the notification time for the agreement". On the materials available to me, that purpose was carried into effect in the following ways:

• (a) The e-mail distributed at the notification time relevantly included the following text:

NOTIFICATION OF INTENT TO BARGAIN AN ENTERPRISE AGREEMENT

Prysmian Australia Pty Ltd (the Company) is notifying you that it is initiating the bargaining process for an Enterprise Bargaining Agreement named "Amapro-W&B Pty Ltd Enterprise Agreement 2025" (the proposed Agreement).

The proposed Agreement is to cover employees that are covered by the Amapro-W&B Pty Ltd Enterprise Agreement 2022 (the current Agreement), or otherwise covered by the Manufacturing and Associated Industries and Occupations Award 2020 (the Award).

The intention is for the proposed Agreement is for us to collectively agree upon and set the terms and conditions of your employment moving forward. It is anticipated that the Agreement will:

• Update the terms in the current Agreement
• Be an "Employer of Choice" in attracting and retaining local workforce
• Simplify the Award to ensure everyone understands their workplace rights
• Improve Employee engagement where we value your input by negotiating together on your terms and conditions of employment
• Provide clear processes for handling workplace disputes

The Notice of Employee Representational Rights (NERR) is attached. Please review this carefully as it details your right to be represented by a bargaining representative.

Please note, the AMWU (the Union) is the default bargaining representative for you (the employees). However, the union will not be your bargaining representative if:

• You revoke the status of the union as your bargaining representative; or
• You appoint another person, or yourself as a bargaining representative for the proposed Agreement.

Please refer to the Bargaining Representative Nomination Form in Appendix A to nominate the union, or yourself or another person as your bargaining representative.

Please note, you are entitled to nominate a bargaining representative at any time during the process. The Company will be in contact with you soon to provide a draft proposed Agreement, from there we will book in bargaining meetings with your bargaining representatives to negotiate the terms of the proposed Agreement."

(b) The NERR in its proper format was available on noticeboard in the workplace well in advance of the access period commencing.

[9] I note further that that Statement of Principles that I am required to "take into account" in determining whether I am satisfied that an agreement was genuinely agreed to states as follows:

"The employer should ensure that employees of the employer who will be covered by a proposed enterprise agreement and are employed at the notification time for the agreement (as defined in section 173(2) of the Fair Work Act) are informed:

(a) that the employer is bargaining for an enterprise agreement and of the proposed coverage of the agreement, and

(b) of the employees' rights to be represented in bargaining for the agreement, including by an employee organisation or by another bargaining representative of their choice, and how to exercise those rights, at such a time and in such a manner that the employees have a reasonable opportunity to be represented in bargaining for the agreement."[2]

The communications that the employer did provide met that requirement.

[10] In all of the circumstances, I am satisfied that the non-provision of the NERR was in this instance a minor procedural error. I now turn the question of whether that minor procedural error was likely to disadvantaged employees.

[11] It might reasonably be expected that, having been informed accurately of the substantive right to be represented in bargaining, employees would not have been disadvantaged. The fact that, in the event, employees did exercise that right confirms that expectation. The employer's further material indicates that both union and non-union bargaining representatives were appointed and participated in the bargaining. A further factor I regard as relevant in relation to this issue is that this bargaining process was engaged in for the purposes of replacing an extant agreement (which also covered the AMWU), such that it was likely that there was some familiarity with bargaining process among the employees concerned.

[12] Having taken into account the materials provided with the application for approval and since, I am satisfied that each of the requirements of ss. 186, 187, 188 and 190 as relevant to this application for approval have been met.

[13] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 17 November 2025. The nominal expiry date of the Agreement is 1 July 2028.

[1] Huntsman Chemical Company Australia & Ors [2019] FWCRFB 318 at [55].

Printed by authority of the Commonwealth Government Printer