Civil & Allied Technical Construction Pty Limited t/a CATCON

[2019] FWCA 8246

[2019] FWCA 8246

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Civil & Allied Technical Construction Pty Limited t/a CATCON
(AG2019/4092)

CATCON WOOLSTHORPE WIND FARM CIVIL CONSTRUCTION AGREEMENT 2019-2021

Building, metal and civil construction industries
DEPUTY PRESIDENT MANSINI	MELBOURNE, 6 DECEMBER 2019

Application for approval of the CATCON Woolsthorpe Wind Farm Civil Construction Agreement 2019-2021.

[1] CATCON has applied for approval of a single enterprise agreement known as the CATCON Woolsthorpe Wind Farm Civil Construction Agreement 2019-2021 (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 whether: the pre-approval requirements were met, the Agreement contravenes s.55 of the Act and passes the better off overall test. Further information was provided in relation to these concerns.

[3] The Notice of Employee Representational Rights (Notice) issued at the commencement of bargaining was not strictly compliant with the requirements of ss 173(3) and 174 because it was not given within 14 days of the statutory notification time and it included additional content (the company logo and signature). 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 the errors.

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

[5] Written undertakings were given in accordance with s.190 of the Act and are attached at Annexure A (Undertakings). The bargaining representative did not oppose the Undertakings. 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. Pursuant to s.201(3) of the Act, the Undertakings are taken to be terms of the Agreement.

[6] Noting clause 7.2 of the Agreement, I am also 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 application, further information provided on request of the Commission and the Undertakings, 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.

[8] The Agreement was approved on 6 December 2019 and, in accordance with s.54, will operate from 13 December 2019. The nominal expiry date of the Agreement is 31 October 2021.

[9] For the purposes of publication, the signature page of the Agreement has been redacted in part, for confidentiality and as the enterprise agreement when made did not contain the redacted details. 2

DEPUTY PRESIDENT

Annexure A

 1   [2019] FWCFB 318.

 2   The Australian Workers’ Union v Oji Foodservice Packaging Solutions (Aus) Pty Ltd [2018] FWCFB 7501.

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