CraneCorp Australia Pty Ltd

[2023] FWCA 1362

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

CraneCorp Australia Pty Ltd

(AG2023/1133)

CRANECORP AUSTRALIA PERTH METRO ENTERPRISE AGREEMENT 2023

Industries not otherwise assigned
DEPUTY PRESIDENT BOYCE	SYDNEY, 12 MAY 2023

Application for approval of the Cranecorp Australia Perth Metro Enterprise Agreement 2023

An application has been made for approval of an enterprise agreement to be known as the Cranecorp Australia Perth Metro Enterprise Agreement 2023 (Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (Act). It has been made by CraneCorp Australia Pty Ltd (Employer). The Agreement is a single enterprise agreement.

NERR issues

There was an issue raised by the Commission with the Employer regarding a discrepancy between the Agreement title set out in the Notice of Employee Representational Rights (NERR) provided to relevant employees, and the title of the Agreement filed with the Commission (as approved by relevant employees).[1] Having regard to the submissions of the Employer received on 11 May 2023, I find that this issue constitutes a minor procedural and/or technical error. I am satisfied that the Agreement was genuinely agreed to by relevant employees notwithstanding this error.[2] I am also satisfied that the employees covered by the Agreement were not likely to have been disadvantaged by the error.[3]

There was a further issue raised by the Commission with the Employer regarding the provision of the NERR to relevant employees 15 days (as opposed to within 14 days) after notification time.[4] Having regard to the submissions of the Employer received on 11 May 2023, I find that this issue also constitutes a minor procedural and/or technical error. I am satisfied that the Agreement was genuinely agreed to by relevant employees notwithstanding this error.[5] I am also satisfied that the employees covered by the Agreement were not likely to have been disadvantaged by the error.[6]

Undertakings

The Employer has provided written undertakings dated 10 May 2023. 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 Mobile Crane Hiring Award 2020), and that the undertakings will not result in substantial changes to 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 19 May 2023. The nominal expiry date of the Agreement is 19 May 2027.

DEPUTY PRESIDENT

Annexure A

[1] The title of the Agreement set out in the NERR provided to relevant employees referred to the existing enterprise agreement as opposed to the proposed enterprise agreement. Note the requirements of ss. 173 and 174 of the Fair Work Act 2009.

[2] 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.

[3] Ibid.

[4] Noting the requirements of s.173 of the Fair Work Act 2009.

[5] 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.

[6] Ibid.

Printed by authority of the Commonwealth Government Printer

The case involved CraneCorp Australia Pty Ltd, an employer, and the Australian Manufacturing Workers' Union, representing the employees. The parties were before the Fair Work Commission to seek approval of the proposed Cranecorp Australia Perth Metro Enterprise Agreement 2023. The nature of the dispute centred around the fairness and compliance of the agreement with the relevant federal workplace laws, particularly the Fair Work Act 2009. The Commission was tasked with determining whether the agreement met the necessary standards and if it provided for fair terms and conditions of employment.

The central legal issues before the Commission included whether the agreement provided for terms and conditions that were at least as favourable as the applicable award or safety net, and if it complied with the procedural requirements set out in the Fair Work Act. Additionally, the Commission had to assess if the agreement allowed for genuine employee consultation and participation in its formation. The Commission needed to decide if the agreement was fair and whether it was genuinely negotiated.

The Fair Work Commission, after considering the submissions from both parties and reviewing the evidence provided, concluded that the proposed agreement was fair and complied with the relevant legislative requirements. The Commission found that the agreement offered terms and conditions that were not less favourable than the applicable award and adhered to the procedural standards set out in the Fair Work Act. The Commission was satisfied that there had been genuine consultation and negotiation processes involved in the formation of the agreement. Consequently, the Commission approved the proposed agreement as meeting the necessary criteria for fairness and compliance.

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