Aqua Infra Pty Ltd

[2020] FWCA 6650

[2020] FWC 6650

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.210—Enterprise agreement

Aqua Infra Pty Ltd
(AG2020/1916)

AQUA INFRA ENTERPRISE AGREEMENT 2019-2022

Building, metal and civil construction industries
COMMISSIONER MCKINNON	MELBOURNE, 11 DECEMBER 2020

Enterprise agreement variation

[1] Application has been made by Aqua Infra Pty Ltd for approval of a variation to the Aqua Infra Enterprise Agreement 2019-2022 (the Agreement).

[2] The application seeks to vary various clauses of the Agreement. The variation to the Agreement is attached to this decision as Annexure A. The variation was filed in the form of a revised undertaking to the Agreement, signed by the employer and a representative of employees.

[3] Employees were provided with details of the voting instructions on the first day of the access period for the Agreement. In all the circumstances and having regard to the decision of the Full Bench in Huntsman Chemical Company Australia Pty Limited T/A RMAX Rigid Cellular Plastics & Others,^[1] I am satisfied that this constitutes a minor procedural or technical error for the purposes of s188(2)(a) and 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.

[4] The Applicant has provided a written undertaking. A copy of the undertaking is attached in Annexure B. I am satisfied that the undertaking will not cause financial detriment to any affected employee and that the undertaking will not result in substantial changes to the variation. The undertaking is taken to be terms of the Agreement.

[5] With the undertakings referred to above, and on the basis of the material contained in the application and accompanying statutory declaration, I am satisfied that each of the requirements of ss.211 and 212 as are relevant to this application for approval have been met.

[6] The Applicant provided written undertakings to meet concerns that particular requirements of ss.186 and 187 had not been met in relation to the application for approval of the Agreement. The undertakings signed on 22 July 2019 were accepted and the Agreement was approved on 20 May 2019. The first two of those undertakings remain part of the Agreement as varied while the third undertaking has been replaced by the variation agreed between the parties.

[7] Pursuant to s.202(4) of the Act, the model flexibility term prescribed by the Fair Work Regulations 2009 was taken to be a term of the Agreement. The model term remains part of the Agreement as varied.

[8] Pursuant to s.205(2) of the Act, the model consultation term prescribed by the Fair Work Regulations 2009 was taken to be a term of the Agreement. The model term remains part of the Agreement as varied.

[9] The variation is approved and the consolidated version of the Agreement, as varied, is attached to this decision.

[10] In accordance with s.216 of the Act, the variation operates from 11 December 2020.

COMMISSIONER

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