Australian Engineering Solutions Pty Ltd T/A Austeng

[2022] FWCA 1009

[2022] FWCA 1009

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s. 185—Enterprise agreement

Australian Engineering Solutions Pty Ltd T/A Austeng

(AG2022/697)

AUSTENG Enterprise Agreement 2022

Building, metal and civil construction industries
COMMISSIONER MIRABELLA	MELBOURNE, 22 MARCH 2022

Application for approval of the AUSTENG Enterprise Agreement 2022.

1. Australian Engineering Solutions Pty Ltd T/A Austeng (the Employer) has made an application for approval of an enterprise agreement known as the AUSTENG Enterprise Agreement 2022 (the Agreement) pursuant to s. 185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement.

1. On the basis of the material contained in the application and accompanying declaration, I am satisfied that each of the requirements of sections 186, 187 and 188, as are relevant to this application for approval, have been met.

1. I observe that a provision of the Agreement is likely to be inconsistent with the National Employment Standards (NES). However, noting clause 3.2(c) of the Agreement, I am satisfied that the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

1. The Form F17 Declaration lodged by the Employer contained an error in that it provided an incorrect date for the notification time of the Agreement. The Employer has requested that the Commission exercise its discretion to correct this error. I am satisfied that the correction should be made and that it is appropriate to do so pursuant to s. 586 of the Act. On 22 March 2022 the Employer filed an amended version of the Form F17 Declaration correcting the error identified.

1. The Employer provided to employees a notice of employee representational rights that contained content that was not prescribed by the regulations. Pursuant to s. 188(2), I am satisfied that the Agreement would have been genuinely agreed to but for the minor procedural error made in relation to the requirement in s. 174(1A)(b). I am satisfied that the employees covered by the Agreement were not likely to have been disadvantaged by the error. As a result, I am satisfied that the Agreement has been genuinely agreed to within the meaning of s. 188(2) of the Act.

1. The Agreement was approved on 22 March 2022 and, in accordance with s. 54, will operate from 29 March 2022. The nominal expiry date of the Agreement is 31 December 2024.

COMMISSIONER

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