Delgo Pty Ltd ATF The Westwide Electrical Unit Trust T/A Westwide Electrical Services
[2023] FWCA 2196
•20 JULY 2023
| [2023] FWCA 2196 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.185—Enterprise agreement
Delgo Pty Ltd ATF The Westwide Electrical Unit Trust T/A Westwide Electrical Services
(AG2023/2231)
WESTWIDE ELECTRICAL SERVICES ENTERPRISE AGREEMENT 2023-2027
| Electrical contracting industry | |
| DEPUTY PRESIDENT BEAUMONT | PERTH, 20 JULY 2023 |
Application for approval of the Westwide Electrical Services Enterprise Agreement 2023-2027
Delgo Pty Ltd ATF The Westwide Electrical Unit Trust T/A Westwide Electrical Services (the Applicant) has made an application for the approval of an enterprise agreement known as the Westwide Electrical Services Enterprise Agreement 2023-2027 (the Agreement). The application was made under s 185 of the Fair Work Act 2009 (Cth) (the Act). The Agreement is a single enterprise agreement.
The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) (Amending Act) made a number of changes to enterprise agreement approval processes in Part 2-4 of the Act, that commenced operation on 6 June 2023.
Under transitional arrangements, amendments made by Part 14 of Schedule 1 to the Amending Act in relation to genuine agreement requirements for agreement approval applications apply where the notification time for the agreement was on or after 6 June 2023. The genuine agreement provisions in Part 2-4 of the Act, as it was before 6 June 2023, continue to apply in relation to agreement approval applications where the notification time for the agreement was before 6 June 2023. I note that the notification time for the Agreement was 18 April 2023.[1]
It appears from the Applicant’s declaration that employees were not provided with full details of the voting instructions seven clear days before the vote. In all the circumstances, including the fact that the voting period spanned a full week and relevant employees were provided with reminders to vote, and having regard to the decision of the Full Bench in Huntsman Chemical Company Australia Pty Ltd [2019] FWCFB 318, I am satisfied that this constitutes a minor procedural or technical error for the purposes of s 188(2)(a) (as it was prior to 6 June 2023). Further, I am satisfied that the employees covered by the Agreement were not likely to have been disadvantaged by the error. As a result, I am satisfied that the Agreement has been genuinely agreed within the meaning of s 188(2) of the Act (as it was prior to 6 June 2023).
The Applicant has provided written undertakings. A copy of the undertakings is attached in Annexure A. 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.
In compliance with s 190(4) of the Act, the bargaining representative’s views regarding the undertakings proffered were sought. The bargaining representative was provided with the opportunity to raise and address any objections he had to the undertakings proffered by the Applicant. Whilst an objection was initially raised, the bargaining representative later confirmed the objection was not pressed and he was content for the Commission to approve the Agreement.
Subject to the undertakings referred to above, and on the basis of the material contained in the application and accompanying declarations, 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.
The Agreement was approved on 20 July 2023 and, in accordance with s 54, will operate from 27 July 2023. The nominal expiry date of the Agreement is 20 July 2027.
DEPUTY PRESIDENT
Annexure A
[1] Form F17A – Employer’s declaration in support of an application for approval of an enterprise agreement (other than a greenfields agreement) – notification time before 6 June 2023, question 18.
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