Auspat Land Survey Pty Ltd

[2022] FWCA 691

[2022] FWCA 691

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Auspat Land Survey Pty Ltd

(AG2022/195)

Auspat Land Survey Enterprise Agreement 2021

Technical services
DEPUTY PRESIDENT YOUNG	MELBOURNE, 1 MARCH 2022

Application for approval of the Auspat Land Survey Enterprise Agreement 2021

1. Auspat Land Survey Pty Ltd (the Employer) has made an application for approval of an enterprise agreement known as the Auspat Land Survey Enterprise Agreement 2021 (the Agreement) pursuant to s 185 of the Fair Work Act 2009 (the Act). The Agreement is a single-enterprise agreement.

1. A copy of the Surveying Award 2020 was not provided to all employees. The Employer provided submissions as to this error on 25 February 2022. 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 of s 188(2)(a) of Act. Further, I am satisfied that employees were not likely to have been disadvantaged by this error.

1. 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).

1. 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. The undertakings are taken to be a term of the Agreement.

1. Subject to the undertakings referred to above, and 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, 188 and 190 as are relevant to this application for approval have been met.

1. I observe that Part E clause 2(f) and Part E clause 3(a) of the Agreement are likely to be inconsistent with the National Employment Standards (NES). However, noting Part A clause 6 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.

1. The Agreement was approved on 1 March 2022 and, in accordance with s 54, will operate from 8 March 2022. The nominal expiry date of the Agreement is 1 March 2026.

DEPUTY PRESIDENT

Annexure A

[1] [2019] FWCFB 318

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