Advanced Concrete Engineering Pty Ltd

[2020] FWCA 6398

[2020] FWCA 6398

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Advanced Concrete Engineering Pty Ltd
(AG2020/3038)

ADVANCED CONCRETE ENGINEERING PTY LTD ENTERPRISE AGREEMENT 2020-2024

Building, metal and civil construction industries
DEPUTY PRESIDENT MANSINI	MELBOURNE, 30 NOVEMBER 2020

Application for approval of the Advanced Concrete Engineering Pty Ltd Enterprise Agreement 2020-2024.

[1] Advanced Concrete Engineering Pty Ltd has applied for approval of a single enterprise agreement known as the Advanced Concrete Engineering Pty Ltd Enterprise Agreement 2020-2024 (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 pre-approval requirements were met, the Agreement contravenes s.55 of the Act and passes the better off overall test. Further information was provided in relation to these concerns.

[3] The written notice of the voting method contained an incorrect date which was subsequently corrected. All employees to be covered by the Agreement at the time of the vote cast a valid vote. In the circumstances and having regard to the decision in Huntsman Chemical Company Australia Pty Limited t/a RMAX Cellular Plastics and Others, I am satisfied that:

a) 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 the error.

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

[5] Noting clause 5.4 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.

[6] 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.

[7] 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.

[8] The Agreement was approved on 30 November 2020 and, in accordance with s.54, will operate from 7 December 2020. The nominal expiry date of the Agreement is 30 November 2024.

[9] 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. 1

DEPUTY PRESIDENT

Annexure A

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

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