Brooks Marchant Industries (ACT) Pty Limited T/A Brooks Marchant Industries (ACT) Pty Limited

[2019] FWCA 7057

[2019] FWCA 7057

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Brooks Marchant Industries (ACT) Pty Limited T/A Brooks Marchant Industries (ACT) Pty Limited
(AG2019/3417)

BROOKS MARCHANT INDUSTRIES (ACT) PTY LTD SINGLE ENTERPRISE AGREEMENT 2019

Electrical contracting industry
COMMISSIONER CIRKOVIC	MELBOURNE, 11 OCTOBER 2019

Application for approval of the Brooks Marchant Industries (ACT) Pty Ltd Single Enterprise Agreement 2019.

[1] An application has been made for approval of an enterprise agreement known as the Brooks Marchant Industries (ACT) Pty Ltd Single Enterprise Agreement 2019 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Brooks Marchant Industries (ACT) Pty Limited T/A Brooks Marchant Industries (ACT) Pty Limited. The Agreement is a single enterprise agreement.

[2] I observe that the following provisions are likely to be inconsistent with the National Employment Standards (NES):

- 7.1;

- 7.3; and

- 7.4.

[3] However, noting clause 5.5 of the Agreement, I am satisfied that the beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

[4] The Notice of Employee Representational Rights issued to employees was not strictly in the form currently prescribed by the Fair Work Regulations 2009 (Cth). 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 the error.

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

[5] 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. The Agreement does not cover all of the employees of the employer, however, taking into account the factors in Section 186(3) and (3A) I am satisfied that the group of employees was fairly chosen.

[6] The Agreement was approved on 11 October 2019 and, in accordance with s.54, will operate from 18 October 2019. The nominal expiry date of the Agreement is 10 October 2023.

COMMISSIONER

 1   [2019] FWCFB 318.

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