Empire Essential Services Pty Ltd

[2020] FWCA 1438

[2020] FWCA 1438

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Empire Essential Services Pty Ltd
(AG2020/408)

EMPIRE ESSENTIAL SERVICES FIRE ALARMS INSTALLATION ENTERPRISE AGREEMENT 2020

Electrical contracting industry
DEPUTY PRESIDENT SAUNDERS	NEWCASTLE, 18 MARCH 2020

Application for approval of the Empire Essential Services Fire Alarms Installation Enterprise Agreement 2020.

[1] An application has been made for approval of an enterprise agreement known as the Empire Essential Services Fire Alarms Installation Enterprise Agreement 2020 (Agreement). The application was made pursuant to section 185 of the Fair Work Act 2009 (Act). The Agreement is a single enterprise agreement.

[2] The statutory declaration (form F17) filed with the application indicated that employees were notified of the time, place and method of voting on 31 January 2020. The vote to approve the Agreement occurred on 7 February 2020. This does not comply with the requirement in section 180(3) of the Act that the employer must take all reasonable steps to notify the relevant employees of the time, place and method of voting by the start of the access period (being the 7 clear days ending immediately before the day of the vote).

[3] Nevertheless, in the circumstances, I am satisfied that having regard to the decision of the Full Bench in Huntsman Chemical Company Australia Pty Limited T/A RMAX Rigid Cellular Plastics & Others, 1 this constitutes a minor procedural or technical error for the purposes of paragraph 188(2)(a) of the Act. Further, having regard to the content of the statutory declaration (form F17) 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 subsection 188(2) of the Act.

[4] The Employer has provided written undertakings (Undertakings). A copy of the Undertakings is attached in Annexure A to this decision. I am satisfied that the effect of accepting the Undertakings is not likely to:

(a) cause financial detriment to any employee covered by the Agreement; or

(b) result in substantial changes to the Agreement.

[5] Pursuant to subsection 190(3) of the Act, I accept the Undertakings. The Undertakings are taken to be a term of the Agreement.

[6] Subject to the Undertakings, I am satisfied that each of the requirements of sections 186, 187, 188 and 190 as are relevant to this application for approval have been met.

[7] Pursuant to subsection 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.

[8] Pursuant to subsection 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.

[9] The Agreement is approved and, in accordance with section 54 of the Act, will operate from 25 March 2020. The nominal expiry date of the Agreement is 19 February 2023.

DEPUTY PRESIDENT

Annexure A

 1   [2019] FWCFB 318

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