Aqua Infra Pty Ltd

[2019] FWCA 5261

[2019] FWCA 5261

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Aqua Infra Pty Ltd
(AG2019/1026)

AQUA INFRA ENTERPRISE AGREEMENT 2019-2022

Building, metal and civil construction industries
DEPUTY PRESIDENT YOUNG	MELBOURNE, 29 JULY 2019

Application for approval of the Aqua Infra Enterprise Agreement 2019-2022.

[1] Aqua Infra Pty Ltd (the Employer) has made an application for approval of an enterprise agreement known as the Aqua Infra Enterprise Agreement (the Agreement) pursuant to s 185 of the Fair Work Act 2009 (the Act). The Agreement is a single-enterprise agreement.

[2] The employer is Aqua Infra Pty Ltd. The Notice of Representational Rights (NERR) provided to employees states that “Aqua Infra gives notice that it is bargaining…”. Accordingly, the full legal name of the employer is not included in the NERR. I am satisfied having regard to the Full Bench decision in Huntsman Chemical Company Australia Pty Ltd T/A RMAX Rigid Cellular Plastics & Others 1(Huntsman)that this constitutes a minor technical or procedural error for the purposes s 188(2)(a) of Act. Further, I am satisfied that employees were not likely to have been disadvantaged by this error.

[3] The employer’s statutory declaration filed in support of the application for approval (Statutory Declaration) states that employees were notified of the time, place and method of the vote on 1 March 2019 and the vote took place on 8 March 2019. Accordingly, seven clear days’ notice of the time, place and method of the vote occurring was not given as is required under s 180(3) of the Act. 2 The Statutory Declaration states that the Agreement covers 3 employees and 3 employees cast a valid vote. In light of this and with reference to decision in Huntsman, I am satisfied that this also constitutes a minor technical or procedural error for the purposes of s 188(2)(a). I am also satisfied that the employees covered by the Agreement were not likely to have been disadvantaged by the error.

[4] Accordingly, notwithstanding the matters identified in paragraphs [2] and [3] above, I am satisfied that the Agreement has been genuinely agreed within the meaning of s 188(2).

[5] The Employer has provided written undertakings. A copy of the undertakings is attached at Annexure A. I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement and the undertakings will not result in substantial changes to the Agreement.

[6] Pursuant to s 202(4) of the Act, the model flexibility term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.

[7] Pursuant to s 205(2) of the Act, the model consultation term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.

[8] Subject to the undertakings referred to above, and on the basis of the material contained in the application, the accompanying statutory declaration, and the further information and material provided by the Employer, and in reliance upon s 188(2) of the Act, 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.

[9] The application was not lodged within 14 days after the Agreement was made. The Employer provided submissions in its application and in an email to the Commission on 4 June 2019 as to the explanation for the late lodgment. On the basis of those submissions, pursuant to s 185(3)(b) of the Act, in all the circumstances I consider it fair to extend the time for making the application to the date it was actually made.

[10] The Agreement was approved on 29 July 2019 and, in accordance with s 54, will operate from 5 August 2019. The nominal expiry date of the Agreement is 29 March 2022.

DEPUTY PRESIDENT

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Annexure A

 1   [2019] FWCFB 318

 2   Construction, Forestry, Maritime, Mining and Energy Union and Ors v CBI Contractors Pty Ltd [2018] FWCFB 2732