AC Electrics NSW Pty Ltd

[2020] FWCA 6478

[2020] FWCA 6478

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

AC Electrics NSW Pty Ltd
(AG2020/3118)

AC ELECTRICS NSW PTY LTD ENTERPRISE AGREEMENT 2020

Electrical contracting industry
DEPUTY PRESIDENT MANSINI	MELBOURNE, 3 DECEMBER 2020

Application for approval of the AC Electrics NSW Pty Ltd Enterprise Agreement 2020.

[1] AC Electrics NSW Pty Ltd has applied for approval of a single enterprise agreement known as the AC Electrics NSW Pty Ltd Enterprise Agreement 2020 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (Cth) (the Act).

[2] Since the application was made, the Commission raised concerns about whether the Agreement contravenes s.55 of the Act, contains the mandatory terms, passes the better off overall test and whether the pre-approval requirements were met. Further information was provided in relation to these concerns.

[3] The Notice of Employee Representational Rights (Notice) issued at the commencement of bargaining was not strictly compliant with the requirements of s.174 because it does not appear to have been issued within 14 days of the original notification time as required by s.173. The Notice was otherwise compliant in all respects. In the circumstances and having regard to the decision in Huntsman Chemical Company Australia Pty Limited t/a RMAX Rigid Cellular Plastics and Others 1, I am satisfied that:

•  this constitutes a minor procedural or technical error for the purposes of s.188(2)(a); and
b) the employees to be covered by the Agreement were not likely to have been disadvantaged by this error.

[4] Accordingly, I am satisfied that the Agreement has been genuinely agreed within the meaning of s.188(2) of the Act.

[5] The model consultation term prescribed by the Regulations is taken to be a term of the Agreement, pursuant to s.205(2) of the Act.

[6] Noting clause 5.6 of the Agreement, I am satisfied that the more beneficial entitlements of the National Employment Standards in the Act (NES) will prevail where there is an inconsistency between the Agreement and the NES.

[7] Written undertakings were given in accordance with s.190 of the Act and are attached at Annexure A (Undertakings) and were not opposed. 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. Pursuant to s.201(3) of the Act, the Undertakings are taken to be terms of the Agreement.

[8] As there were no bargaining representatives appointed to represent the employees to be covered by the Agreement the Commission took steps to ensure the relevant employees were served with, and has received evidence that, the employees were informed of: the application; the Commission’s concerns; the Applicant’s responses to those concerns; and were invited to express their views (including about the Undertakings) and none opposed.

[9] On the basis of the material contained in the application, further information provided on request of the Commission and the Undertakings, 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.

[10] The Agreement was approved on 3 December 2020 and, in accordance with s.54, will operate from 10 December 2020. The nominal expiry date of the Agreement is 3 December 2024.

[11] For the purposes of publication, the signature page of the Agreement has been redacted in part, for confidentiality and as the enterprise agreement when made did not contain the redacted details. 2

DEPUTY PRESIDENT

Annexure A

 1   [2019] FWCFB 318.

 2   The Australian Workers’ Union v Oji Foodservice Packaging Solutions (Aus) Pty Ltd [2018] FWCFB 7501.

Printed by authority of the Commonwealth Government Printer

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