BOC Limited

[2020] FWCA 4890

[2020] FWCA 4890

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

BOC Limited
(AG2020/2396)

BOC LIMITED LUTANA (OPERATIONS) ENTERPRISE AGREEMENT 2020

Manufacturing and associated industries
DEPUTY PRESIDENT MANSINI	MELBOURNE, 11 SEPTEMBER 2020

Application for approval of the BOC Limited Lutana (Operations) Enterprise Agreement 2020.

[1] BOC Limited has applied for approval of a single enterprise agreement known as the BOC Limited Lutana (Operations) Enterprise Agreement 2020 (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 the form of the application and whether the pre-approval requirements were met. Further information was provided in relation to these concerns.

[3] The Applicant sought to correct a typographical error in the original application, by filing an amended Agreement. In the circumstances, I am satisfied that this amendment should be allowed and that it is appropriate to do so pursuant to s.586 of the Act.

[4] I am not satisfied that the Applicant took all reasonable steps to provide employees to be covered with access to, or give them a copy of, the incorporated Award as required by s.180(2) and the Notice of Employee Representational Rights (Notice) issued at the commencement of bargaining was not strictly compliant with the requirements of s.174 because it included minor modification to the prescribed content. The Notice was otherwise compliant in all respects. 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) these constitute minor procedural or technical errors 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 these errors.

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

[6] Noting clause 12(b) of the Agreement, 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 amended application and related materials, 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.

[8] The "Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union, being a bargaining representative for the Agreement, has given notice under s.183 of the Act. In accordance with s.201(2), I note that the Agreement covers this organisation.

[9] The Agreement was approved on 11 September 2020 and, in accordance with s.54, will operate from 18 September 2020. The nominal expiry date of the Agreement is 31 March 2021.

DEPUTY PRESIDENT

 1   [2019] FWCFB 318.

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