CraneCorp Australia Pty Ltd
[2023] FWCA 1362
•12 MAY 2023
| [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.
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