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

1 [2019] FWCFB 318

CaseChat Overview and Summary

AsClear Pty Ltd, the applicant, sought the Fair Work Commission's approval for the AsClear General Works Enterprise Agreement 2020-2024. The agreement was between the company and its employees represented by the Electrical Trades Union of Australia. The dispute centered on whether the agreement complied with the Fair Work Act 2009, particularly regarding its provisions on employment conditions, wages, and dispute resolution mechanisms.

The key legal issues before the court were whether the agreement was made in good faith, the provisions complied with minimum entitlements under the Fair Work Act, and whether the agreement facilitated efficient and effective workplace relations. The applicant argued that the agreement was fair and reasonable, while the union contended that it did not adequately protect employees' rights and failed to meet the standards set by the Fair Work Act.

In its decision, the court found that while the agreement contained some provisions that did not meet the minimum standards, the majority of the agreement was fair and reasonable. The court noted that the applicant had made efforts to comply with the statutory requirements and that the minor deficiencies could be rectified. The court concluded that the benefits of approving the agreement outweighed the minor non-compliances, leading to the decision to approve the agreement with the conditions that certain provisions be amended to meet the minimum standards prescribed by the Fair Work Act.

The final orders included the approval of the AsClear General Works Enterprise Agreement 2020-2024, subject to the specified amendments. The court mandated that the applicant must ensure these changes are implemented within a specified timeframe, failing which the agreement could be subject to review and potential revocation.

AsClear Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established