AsClear Pty Ltd

[2021] FWCA 3177

[2021] FWCA 3177

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

AsClear Pty Ltd
(AG2021/5137)

ASCLEAR GENERAL WORKS ENTERPRISE AGREEMENT 2020-2024

Building, metal and civil construction industries
DEPUTY PRESIDENT YOUNG	MELBOURNE, 2 JUNE 2021

Application for approval of the AsClear General Works Enterprise Agreement 2020-2024.

[1] AsClear Pty Ltd (the Employer) has made an application for approval of an enterprise agreement known as the AsClear General Works Enterprise Agreement 2020-2024 (the Agreement) pursuant to s 185 of the Fair Work Act 2009 (the Act). The Agreement is a single-enterprise agreement.

[2] The Notice of Employee Representational Rights provided to employees was not in the prescribed form. The Employer provided submissions as to this error on 24 and 28 May 2021. I am satisfied having regard to those submissions and 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] Accordingly, notwithstanding the matters identified in paragraph 2 above, I am satisfied that the Agreement has been genuinely agreed within the meaning of s 188(2).

[4] On the basis of the material contained in the application, and the accompanying statutory declaration and the additional information provided by the Employer, 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.

[5] I observe that clause 17 of the Agreement is likely to be inconsistent with the National Employment Standards (NES). However, noting clause 5 of the Agreement, I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

[6] The Agreement was approved on 2 June 2021 and, in accordance with s 54, will operate from 9 June 2021. The nominal expiry date of the Agreement is 1 July 2024.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<AE511698  PR730401>

 1   [2019] FWCFB 318