BAE Systems Australia Limited

[2019] FWCA 489

[2019] FWCA 489

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

BAE Systems Australia Limited
(AG2018/6977)

BAE SYSTEMS AUSTRALIA FAST JET SUPPORT EMPLOYEE COLLECTIVE AGREEMENT 2018-2021

Manufacturing and associated industries
COMMISSIONER LEE	MELBOURNE, 30 JANUARY 2019

Application for approval of the BAE Systems Australia Fast Jet Support Employee Collective Agreement 2018-2021.

[1] An application has been made for approval of an enterprise agreement known as the BAE Systems Australia Fast Jet Support Employee Collective Agreement 2018-2021 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by BAE Systems Australia Limited. The Agreement is a single enterprise agreement.

[2] I note that the employer’s statutory declaration in support of the application for approval of an enterprise agreement (F17) indicates that employees were notified of the time, place and method of the vote on 20 November 2018. The vote commenced less than seven clear days later, on 27 November 2018. Also relevant is the fact that the F17 states that 224 employees will be covered by the Agreement and 175 employees cast a valid vote. In Construction, Forestry, Maritime, Mining and Energy Union and Ors v CBI Constructors Pty Ltd 1, the Full Bench confirmed that an employer must take all reasonable steps to notify relevant employees of the time, place and method of the vote at least seven clear days before the commencement of the vote, pursuant to s.180 (3) of the Act. Although it does not appear that employees were notified of the time, place and method of the vote seven clear days before the commencement of the vote, I refer to s.188 (2) of the Act and am satisfied that this error constitutes a minor procedural error, and that employees covered by this agreement are not likely to be disadvantaged as a result of the error.2

[3] The Applicant has provided written undertakings. A copy of the undertakings is attached in Annexure A. 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.

[4] Subject to the undertakings referred to above, 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.

[5] I observe that the following provision is likely to be inconsistent with the National Employment Standards (NES):

● Clause 23.2 (a) - annual leave;
● Clause 23.5 (a) - personal leave;
● Clause 28.5 - abandonment of employment; and
● Clause 9.3 – casual employment;

However, noting clause 2 of the undertaking, I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

[6] Pursuant to s.205(2) of the Act, the model consultation term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.

[7] The Australian Workers’ Union being a bargaining representative for the Agreement, has given notice under s.183 of the Act that it wants the Agreement to cover it. In accordance with s.201(2) I note that the Agreement covers the organisation.

[8] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 6 February 2019. The nominal expiry date of the Agreement is 30 June 2021.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

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Annexure A

 1   [2018] FWCFB 2732.

 2   Huntsman Chemical Company Australia Pty Limited T/A RMAX Rigid Cellular Plastics & Others [2019] FWCFB 318.