Cosmic Group Services Pty Ltd

[2021] FWCA 4201

[2021] FWCA 4201

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Cosmic Group Services Pty Ltd
(AG2021/5860)

COSMIC GROUP PTY LTD (VICTORIAN PROJECTS) ENTERPRISE AGREEMENT 2021-2025

Building, metal and civil construction industries
COMMISSIONER LEE	MELBOURNE, 16 JULY 2021

Application for approval of the Cosmic Group Pty Ltd (Victorian Projects) Enterprise Agreement 2021-2025.

[1] An application has been made for approval of an enterprise agreement known as the Cosmic Group Pty Ltd (Victorian Projects) Enterprise Agreement 2021-2025 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Cosmic Group Services Pty Ltd. The Agreement is a single enterprise agreement.

[2] 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.

[3] I note that the notice of employee representational rights (NERR) provided to the employees is an earlier version of the notice which has since been superseded. The NERR provided to employees contains content that is not prescribed by the Fair Work Regulations 2009 and therefore contravenes s.174(1A) of the Act.

[4] Furthermore, the NERR states that the Agreement covers employees who are engaged on the “Murra Warra II Wind Farm Project – Victoria”. However, clause 2.2 of the Agreement does not appear to limit the coverage to the Murra Warra II Wind Farm Project – Victoria, and states that the agreement covers:

“employees of the Company who are employees in the building and construction industry in the classifications as set out in Schedule 1 to the Agreements, in the state of Victoria”.

As such, the NERR does not contain the content prescribed by the regulations in accordance with s.174(1A) of the Act.

[5] The Employer made submissions in relation to these errors which I have considered. The Employer indicated that the “use of the outdated template was a genuine administrative error”. In relation to the coverage, the Employer made submissions that:

•  From the outset, the intent of both the business and employees was to put an agreement in place for current/future works in Victoria. Employees and bargaining representatives were always clear that the Agreement would apply to the Murra Warra II Wind Farm Project immediately, and more broadly the state of Victoria.

•  That the NERR was sent to all employees covered by the Agreement via email pursuant to s.173 of the Act.

[6] I am satisfied having regard to those submissions and the Full Bench decision in Huntsman Chemical Company Australia Pty Ltd T/A RMAX Rigid Cellular Plastics & Others 1 that the above matters relating to the NERR constitute minor procedural or technical errors for the purposes of s.188(2)(a). Further, I am satisfied that the employees covered by the Agreement were not likely to have been disadvantaged by the errors.

[7] Accordingly, notwithstanding the matters identified in paragraphs [3] and [4] above, I am satisfied that the Agreement has been genuinely agreed to by the employees covered by the Agreement within the meaning of s.188 of the Act.

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

•  Clause 5.1(b) – Termination of Employment.

•  Clause 6.1(f) – Rates of Pay and Classifications.

•  Clause 9.2(b) – Public Holidays.

However, noting clause 2.3(c) of the Agreement, I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

[9] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 23 July 2021. The nominal expiry date of the Agreement is 15 July 2025.

COMMISSIONER

 1   [2019] FWCFB 318.

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