EnergyAustralia Ecogen Pty Ltd T/A Ecogen Energy

[2020] FWCA 2362

[2020] FWCA 2362

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement

EnergyAustralia Ecogen Pty Ltd T/A Ecogen Energy
(AG2020/1119)

ENERGYAUSTRALIA NEWPORT ENTERPRISE AGREEMENT 2020

Electrical power industry
COMMISSIONER CIRKOVIC	MELBOURNE, 5 MAY 2020

Application for approval of the EnergyAustralia Newport Enterprise Agreement 2020.

[1] An application has been made for approval of an enterprise agreement known as the EnergyAustralia Newport Enterprise Agreement 2020 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by EnergyAustralia Ecogen Pty Ltd T/A Ecogen Energy. The Agreement is a single enterprise agreement.

[2] The employer did not provide the notice of employee representational rights no later than 14 days after the notification time as required by section 173(3) of the Act. However, 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. this constitutes a minor procedural or technical error 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 error.

[3] I am satisfied that each of the requirements of ss.186, 187 and 188 as are relevant to this application for approval have been met. The Agreement does not cover all of the employees of the employer, however, taking into account the factors in Section 186(3) and (3A) I am satisfied that the group of employees was fairly chosen.

[4] The Construction, Forestry, Maritime, Mining and Energy Union, being a bargaining representative for the Agreement, has given notice under s.183 of the Act that it wants the Agreement to cover it. In accordance with s.201(2) I note that the Agreement covers the organisation.

[5] I observe that clause 16.2 is likely to be inconsistent with the National Employment Standards (NES). However, noting clause 3 of the Agreement, I am satisfied that the beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

[6] The Agreement was approved on 5 May 2020 and, in accordance with s.54, will operate from 12 May 2020. The nominal expiry date of the Agreement is 31 December 2023.

COMMISSIONER

 1   [2019] FWCFB 318.

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