Electrical Design & Construction Pty Ltd

[2019] FWCA 4369

[2019] FWCA 4369

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Electrical Design & Construction Pty Ltd
(AG2019/1864)

ELECTRICAL DESIGN AND CONSTRUCTION PTY LTD ENTERPRISE AGREEMENT - 2019/2021

Electrical contracting industry
DEPUTY PRESIDENT COLMAN	MELBOURNE, 24 JULY 2019

Application for approval of the Electrical Design and Construction Pty Ltd Enterprise Agreement - 2019/2021

[1] Electrical Design & Construction Pty Ltd has made an application for approval of an enterprise agreement known as the Electrical Design and Construction Pty Ltd Enterprise Agreement - 2019/2021 (the Agreement) pursuant to s 185 of the Fair Work Act 2009 (the Act). The agreement is a single enterprise agreement.

[2] The application is generally in order however two irregularities require attention. First, employees were provided with a Notice of Employee Representational Rights (NERR) that failed to identify the name of the employer, the name of the proposed enterprise agreement, or the proposed coverage of the agreement.

[3] However, when the director of the company provided the NERR to employees, he explained to them that the proposed agreement would be similar to the current agreement (Electrical Design and Construction Pty Ltd Enterprise Agreement – 2014/2016 1), with increases to wages and allowances, and attached an initial draft of the agreement which had the same coverage as the existing agreement. In my view, it was not in doubt that coverage of the proposed new agreement was the same as the current agreement, and that the NERR related to negotiations for such an enterprise agreement with the current employer, Electric Design and Construction Pty Ltd.

[4] Secondly, the details of the date, method and place of the vote were not provided to employees until six days before the vote, rather than seven clear days. However, the employer’s statutory declaration notes that the Agreement was voted on by all of the 26 employees, with 25 voting in favour.

[5] In all the circumstances, and having regard to the decision of the Full Bench in Huntsman Chemical Company Australia Pty Limited T/A RMAX Rigid Cellular Plastics & Others, 2 I am satisfied that these technical and procedural errors constitute minor errors for the purposes of s188(2)(a). Further, I am satisfied that the employees covered by the agreement were not likely to have been disadvantaged by the errors. As a result, I am satisfied that the Agreement has been genuinely agreed within the meaning of s 188(2) of the Act.

[6] The Employer 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.

[7] Subject to the undertakings referred to above, and on the basis of the material contained in the application and accompanying statutory declaration, 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.

[8] Pursuant to s 205(2) of the Act, the model consultation term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.

[9] 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.

[10] The Agreement was approved on 24 July 2019 and, in accordance with s 54, will operate from 31 July 2019. The nominal expiry date of the Agreement is 30 November 2021.

DEPUTY PRESIDENT

Annexure A

 1   AE410977

 2   [2019] FWCFB 318

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