Ausperl Pty Ltd t/a Ausperl

[2021] FWCA 6292

[2021] FWCA 6292

FAIR WORK COMMISSION

DECISION

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

Ausperl Pty Ltd t/a Ausperl
(AG2021/7583)

AUSPERL PTY LTD ENTERPRISE AGREEMENT 2021

Manufacturing and associated industries
DEPUTY PRESIDENT MANSINI	MELBOURNE, 15 OCTOBER 2021

Application for approval of the Ausperl Pty Ltd Enterprise Agreement 2021.

[1] Ausperl Pty Ltd has applied for approval of a single enterprise agreement known as the Ausperl Pty Ltd Enterprise Agreement 2021 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (Cth) (the Act).

[2] Since the application was made, the Commission raised concerns about whether the pre-approval requirements were met and whether the Agreement contravenes s.55 of the Act. Further information was provided in relation to these concerns.

[3] The relevant employees were notified of the time and place of the vote on the day that was 6 days (and not at least 7 clear days) prior to the commencement of the vote, contrary to the requirement at s.180(3). However all relevant employees cast a valid vote. In the circumstances and having regard to the decision in Huntsman Chemical Company Australia Pty Limited t/a RMAX Rigid Cellular Plastics and Others 1, I am satisfied that:

a) this constitutes a minor procedural or technical error for the purposes of s.188(2)(a); and

b) the employees to be covered by the Agreement were not likely to have been disadvantaged by this error.

[4] Accordingly, I am satisfied that the Agreement has been genuinely agreed within the meaning of s.188(2) of the Act.

[5] Written undertakings were given in accordance with s.190 of the Act and are attached at Annexure A (Undertakings). The bargaining representative did not oppose the Undertakings. I am satisfied that the Undertakings will not cause financial detriment to any employee covered by the Agreement and that the Undertakings will not result in substantial changes to the Agreement. Pursuant to s.201(3) of the Act, the Undertakings are taken to be terms of the Agreement.

[6] Noting the Undertakings, I am satisfied that the more beneficial entitlements of the National Employment Standards in the Act (NES) will prevail where there is an inconsistency between the Agreement and the NES.

[7] On the basis of the material contained in the application, further information provided on request of the Commission and the Undertakings, 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.

[8] The Agreement was approved on 15 October 2021. Notwithstanding clause 3 of the Agreement and, in accordance with s.54, the Agreement will operate from 22 October 2021. The nominal expiry date of the Agreement is 30 November 2023.

[9] For the purposes of publication, the signature page of the Agreement has been redacted in part, for confidentiality and as the enterprise agreement when made did not contain the redacted details. 2

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<AE513532  PR734931>

1   [2019] FWCFB 318.

 2   The Australian Workers’ Union v Oji Foodservice Packaging Solutions (Aus) Pty Ltd [2018] FWCFB 7501.

Annexure A