Davey Water Products Pty Ltd T/A Davey Water Products

[2022] FWCA 368

[2022] FWCA 368

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Davey Water Products Pty Ltd T/A Davey Water Products

(AG2021/9364)

Davey Water Products Pty Ltd Enterprise Bargaining Agreement 2021-2024

Manufacturing and associated industries
DEPUTY PRESIDENT BOYCE	SYDNEY, 7 FEBRUARY 2022

Application for approval of the Davey Water Products Pty Ltd Enterprise Bargaining Agreement 2021 - 2024

1. An application has been made for approval of an enterprise agreement to be known as the Davey Water Products Pty Ltd Enterprise Bargaining Agreement 2021 - 2024 (Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (Act). It has been made by Davey Water Products Pty Ltd T/A Davey Water Products (Employer). The Agreement is a single enterprise agreement.

1. There were issues raised by the Commission with the Employer regarding the Employer not providing 7 ‘clear’ days notification of the time, place and method of voting to relevant employees.[1] Having regard to the submissions and evidence of the Employer provided on 4 February 2022, 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 issue.[2] I am also satisfied that the employees covered by the Agreement were not likely to have been disadvantaged by the error.[3]

1. The Australian Workers’ Union (AWU) and “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU), both being bargaining representatives for the Agreement, have given notice under s.183 of the Act that they want to be covered by the Agreement. In accordance with s.201(2) of the Act, I note that the Agreement covers these organisations.

1. 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.

1. 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.

1. I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

1. The Agreement is approved and, in accordance with s.54 of the Act, will operate from 14 February 2022. The nominal expiry date of the Agreement is 30 June 2024.

DEPUTY PRESIDENT

[1] Noting the requirements of s.180(3) 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.

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