Arakella Pty Ltd T/A GNS Wholesale Stationers

[2020] FWCA 1130

[2020] FWCA 1130

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement

Arakella Pty Ltd T/A GNS Wholesale Stationers
(AG2020/16)

GNS WHOLESALE NSW (GNS) ENTERPRISE AGREEMENT 2019-2022

Storage Services and Wholesale Industry
DEPUTY PRESIDENT BOYCE	SYDNEY, 4 MARCH 2020

Application for approval of the GNS Wholesale NSW (GNS) Enterprise Agreement 2019-2022.

[1] An application has been made for approval of an enterprise agreement to be known as the GNS Wholesale NSW (GNS) Enterprise Agreement 2019-2022 (Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (Act). It has been made by Arakella Pty Ltd T/A GNS Wholesale Stationers (Applicant or Employer). The Agreement is a single enterprise agreement.

[2] I note that the Notice of Employee Representational Rights (NERR) does not appear to be in a form consistent with s.174 of the Act (especially in regard to reg.2.05 and sch.2.1 of the Fair Work Regulations 2009). In this regard, the NERR was printed over two pages and preceded by a cover letter.

[3] Pursuant to s.188(2) of the Act, I consider the discrepancies regarding the form of the NERR to be minor, insofar that the deviation from the requirements of s.174 of the Act does not alter (at all) the requisite terms of the NERR, or otherwise detract from the NERR had it had been issued in the proper form (See: Huntsman Chemical Company Australia Pty Limited T/A RMAX Rigid Cellular Plastics & Others[2019] FWCFB 318 (Ross J, Hatcher VP, and Saunders DP)).

[4] I note that the Agreement was made on 11 December 2019, but was filed for approval with the Fair Work Commission on 3 January 2020. Observing that s.185(3)(a) of the Act imposes is a 14-day time limit to bring an application of this kind (and that the time is measured by reference to the day an agreement is made), the Applicant has brought this application 8 days out of time (taking into account the imposition of the public holidays falling on 25 and 26 December 2019).

[5] Despite the Applicant’s non-compliance in this regard, I find that it is fair to extend the period for making the application by 8 days. I do so in reliance of the power afforded to me by s.185(3)(b) of the Act, and having had regard to all of the circumstances (namely, that the delay is of a short duration, and has not caused prejudice to any employees seeking to be covered by the Agreement).

[6] Notwithstanding the issues referred to above, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 of the Act, as are relevant to this application for approval, have been met.

[7] I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

[8] The United Workers’ Union, being bargaining representatives for the Agreement, has given notice under s.183 of the Act that it wants to be covered by the Agreement. In accordance with s.201(2) of the Act, I note that the Agreement covers this organisation.

[9] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 11 March 2020. The nominal expiry date of the Agreement is 30 June 2022.

DEPUTY PRESIDENT

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