Amentum Global Services - Australia Pty Ltd

[2020] FWCA 6543

[2020] FWCA 6543

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Amentum Global Services - Australia Pty Ltd
(AG2020/3298)

OASIS/VESTA SINGLE-ENTERPRISE AGREEMENT 2020

Manufacturing and associated industries
DEPUTY PRESIDENT CLANCY	MELBOURNE, 4 DECEMBER 2020

Application for approval of the OASIS/VESTA Single-Enterprise Agreement 2020.

[1] An application has been made for the approval of an enterprise agreement known as the OASIS/VESTA Single-Enterprise Agreement 2020 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Amentum Global Services – Australia Pty Ltd and Leidos Australia Pty Ltd. The Agreement is a single enterprise agreement.

[2] The Agreement does not cover all of the employees of Amentum Global Services - Australia Pty Ltd and Leidos Australia Pty Ltd, however, taking into account the factors in s.186(3) and s.186(3A), I am satisfied that the group of employees was fairly chosen.

[3] The materials submitted indicate that Amentum Global Services – Australia Pty Ltd emailed the Notice of Employee Representational Rights (NERR) on 31 January 2018 and Leidos Australia Pty Ltd gave employees the NERR on 19 February 2018, the latter more than 14 days after notification time. While this is inconsistent with s.173 of the Fair Work Act 2009 (Cth) (Act), I note that it has been two years since the NERR was issued and the unions have been involved in representing the employees since that time. Negotiations commenced in May 2018. I am satisfied that this is capable of being categorised as a “minor procedural or technical error” as contemplated by s.188(2) of the Act as it did not disadvantage employees or affect their ability to participate in negotiations or be represented in negotiations. I am satisfied that the agreement would have been genuinely agreed to within the meaning of s.188(1) but for this minor procedural error.

[4] I am therefore satisfied that this matter relating to the provision of the NERR was a minor procedural error, the employees were not likely to have been disadvantaged as a result and that the Agreement has been genuinely agreed notwithstanding it. 1

[5] Amentum Global Services - Australia Pty Ltd and Leidos Australia Pty Ltd have provided written undertakings. A copy of the undertakings is attached in Annexure A. The undertakings are to the effect that where there is an inconsistency between the Agreement and the NES, and the NES provides a greater benefit, the NES provision will apply to the extent of the inconsistency. I am therefore satisfied that the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES. The undertakings are taken to be a term of the Agreement.

[6] Subject to the undertakings referred to above and on the basis of the material contained in the application and accompanying statutory declaration, together with my conclusion at paragraph [4] above, I am satisfied that each of the requirements of ss.186, 187 and 188 as are relevant to this application for approval have been met.

[7] The “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU), the United Workers’ Union (UWU), and the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia, being bargaining representatives for the Agreement, have given notice under s.183 of the Act that they want the Agreement to cover them. In accordance with s.201(2) and based on the statutory declarations provided by each of these organisations, I note that the Agreement covers the AMWU, the UWU and the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia.

[8] The Agreement was approved on 4 December 2020 and, in accordance with its Clause 3.3.1 and s.54(1)(b) of the Act, will operate from 12 December 2020. Further, irrespective of the period of operation described in Clause 3.3.1 of the Agreement, the nominal expiry date of the Agreement cannot be more than 4 years after the day on which the Commission approves the Agreement. 2 As such, the nominal expiry date of the Agreement is 4 December 2024.

DEPUTY PRESIDENT

Annexure A

 1   Fair Work Act 2009, s.188(2).

 2   Fair Work Act 2009, s.186(5).

Printed by authority of the Commonwealth Government Printer

<AE509717  PR725173>