Adbri Masonry Pty Ltd T/A Adbri Masonry Pty Ltd

[2021] FWCA 1567

[2021] FWCA 1567

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Adbri Masonry Pty Ltd T/A Adbri Masonry Pty Ltd
(AG2021/3990)

ADBRI MASONRY PTY LTD AND THE AUSTRALIAN WORKER'S UNION - TASMANIA ENTERPRISE AGREEMENT ULVERSTONE AND HOBART SITES 2020

Manufacturing and associated industries
COMMISSIONER LEE	MELBOURNE, 23 MARCH 2021

Application for approval of the Adbri Masonry Pty Ltd and The Australian Worker's Union - Tasmania Enterprise Agreement Ulverstone and Hobart Sites 2020.

[1] An application has been made for approval of an enterprise agreement known as the Adbri Masonry Pty Ltd and The Australian Worker’s Union - Tasmania Enterprise Agreement Ulverstone and Hobart Sites 2020 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Adbri Masonry Pty Ltd T/A Adbri Masonry 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] The Australian Workers’ Union 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.

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

•  Clause 2.4.7 – Redundancy

•  Clause 5.2.2 – Public holidays

•  Clause 5.3.4 and 5.3.6 – Personal / Carer’s leave

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

[6] The notice of employee representational rights (NERR) given to the employees by the employer was in an outdated form. Nevertheless, in the circumstances, I am satisfied that this constitutes a 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. As a result, I am satisfied that the Agreement has been genuinely agreed within the meaning of s.188(2) of the Act.

[7] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 30 March 2021. The nominal expiry date of the Agreement is 30 June 2023.

COMMISSIONER

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Annexure A