CA & I Pty Ltd
[2022] FWCA 3845
•2 NOVEMBER 2022
| [2022] FWCA 3845 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement
CA & I Pty Ltd
(AG2022/4149)
CA & I Pty Ltd Enterprise Agreement 2012 – 2025
| Building, metal and civil construction industries | |
| DEPUTY PRESIDENT BOYCE | SYDNEY, 2 NOVEMBER 2022 |
Application for approval of the CA & I Pty Ltd Enterprise Agreement 2012 – 2025
An application has been made for the approval of an enterprise agreement to be known as the CA & I Pty Ltd Enterprise Agreement 2012 – 2025 (Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (Act). It has been made by CA & I Pty Ltd (Employer). The Agreement is a single enterprise agreement.
Minor procedural error
There was an issue raised by the Commission with the Employer regarding the provision of relevant information to employees concerning the ‘method’ of voting (via SMS) being provided only one day prior to the start time of the vote to approve the Agreement. Section 180(3)(b) of Act requires that the method of voting be notified to relevant employees at the start of the 7-day access period. Having regard to the submissions of the Employer, and noting that s.180(3)(a) of the Act has been fully complied with, I find that in the facts and circumstances of this case the issue as to non-compliance with s.180(3)(b) of the Act constitutes a minor procedural error. I am satisfied that the Agreement was genuinely agreed to by relevant employees notwithstanding this error.[1] I am also satisfied that the employees covered by the Agreement were not likely to have been disadvantaged by the error.[2]
Undertakings
The Employer has provided written undertakings dated 31 October 2022. Those undertakings are attached at Annexure A to this decision and become terms of the Agreement. I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement (as compared to the relevant provisions of the Building and Construction General On-site Award 2010), and that the undertakings will not result in substantial changes to the Agreement.
Model consultation and flexibility terms
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.
Pursuant to s.202(4) of the Act, the model flexibility term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.
Conclusion
Subject to the undertakings referred to above, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 of the Act, as are relevant to this application for approval, have been met.
I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.
The Agreement is approved and, in accordance with s.54 of the Act, will operate from 9 November 2022. The nominal expiry date of the Agreement is 9 November 2025.
DEPUTY PRESIDENT
Annexure A
[1] See s.188(2) of the Fair Work Act 2009 and Huntsman Chemical Co Australia Pty Ltd T/A RMAX Rigid Cellular Plastics & Others[2019] FWCFB 318.
[2] Ibid.
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