Dynamic Electrical Constructions Pty Ltd t/a Dynelec (Australia)

[2020] FWCA 6

[2020] FWCA 6

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Dynamic Electrical Constructions Pty Ltd t/a Dynelec (Australia)
(AG2019/4671)

DYNELEC (AUSTRALIA) ENTERPRISE AGREEMENT

Electrical contracting industry
DEPUTY PRESIDENT MANSINI	MELBOURNE, 2 JANUARY 2020

Application for approval of the Dynelec (Australia) Enterprise Agreement.

[1] Dynelec (Australia) has applied for approval of a single enterprise agreement known as the Dynelec (Australia) Enterprise Agreement (the Agreement), pursuant to s.185 of the Fair Work Act 2009 (Cth) (the Act).

[2] Since the application was made, the Commission raised concerns about the form of the application and whether: the pre-approval requirements were met, the Agreement contravenes s.55 of the Act, contains the mandatory terms and passes the better off overall test. Further information was provided in relation to these concerns.

[3] The Applicant sought to correct a typographical error in the original application by filing an amended application. In the circumstances, I am satisfied that this correction should be allowed and that it is appropriate to do so pursuant to s.586 of the Act.

[4] The Notice of Employee Representational Rights (Notice) issued at the commencement of bargaining was not strictly compliant with the requirements of s.174 because it was in a form that had been superseded at the statutory notification time and included additional content (the company letterhead). The Notice was otherwise compliant in all respects. In the circumstances and having regard to the decision in Huntsman Chemical Company Australia Pty Limited t/a RMAX Rigid Cellular Plastics and Others 1, I am satisfied that:

a) these constitute minor procedural or technical errors for the purposes of s.188(2)(a); and
b) the employees to be covered by the Agreement were not likely to have been disadvantaged by the errors.

[5] Accordingly, I am satisfied that the Agreement has been genuinely agreed within the meaning of s.188(2) of the Act.

[6] Written undertakings were given in accordance with s.190 of the Act and are attached at Annexure A (Undertakings). The employee bargaining representatives supported the Undertakings. 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. Pursuant to s.201(3) of the Act, the Undertakings are taken to be terms of the Agreement.

[7] The flexibility term prescribed by the Fair Work Regulations 2009 (Cth) (the Regulations) is taken to be a term of the Agreement, pursuant to s.202(4) of the Act.

[8] The consultation term prescribed by the Regulations is taken to be a term of the Agreement, pursuant to s.205(2) of the Act.

[9] On the basis of the material contained in the amended application, further information provided on request of the Commission and the Undertakings, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 as are relevant to this application for approval have been met.

[10] The Agreement is approved and, notwithstanding clause 6 and in accordance with s.54 of the Act, will operate from 9 January 2020. The nominal expiry date of the Agreement is 30 June 2022.

DEPUTY PRESIDENT

Annexure A

 1   [2019] FWCFB 318.

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