EnerMech Pty Limited T/A EnerMech Pty Ltd

[2019] FWCA 3518

[2019] FWCA 3518

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

EnerMech Pty Limited T/A EnerMech Pty Ltd
(AG2019/1445)

ENERMECH PTY LTD ICHTHYS ONSHORE CONSTRUCTION ENTERPRISE AGREEMENT 2019

Building, metal and civil construction industries
COMMISSIONER LEE	MELBOURNE, 21 MAY 2019

Application for approval of the EnerMech Pty Ltd Ichthys Onshore Construction Enterprise Agreement 2019 (the Agreement).

[1] An application has been made for approval of an enterprise agreement known as the EnerMech Pty Ltd Ichthys Onshore Construction Enterprise Agreement 2019 (the Agreement) (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by EnerMech Pty Limited T/A EnerMech Pty Ltd. The Agreement is a single enterprise agreement.

[2] 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.

[3] Subject to the undertakings referred to above, 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.

[4] 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.

[5] 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.

[6] The “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU), the Australian Workers’ Union, the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia and the Construction, Forestry, Maritime, Mining and Energy Union being a bargaining representative for the Agreement, have given notice under s.183 of the Act that they want the Agreement to cover them. In accordance with s.201(2) I note that the Agreement covers the organisations.

[7] I observe that the following provisions are likely to be inconsistent with the National Employment Standards (NES):

•  Clause 7.3 – Termination of Employment

•  Clause 7.4 – Abandonment of Employment

•  Clause 17.1 – Annual Leave

•  Clause 17.2 – Personal Leave

However, noting the second paragraph of the undertakings provided, I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

[8] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 28 May 2019. The nominal expiry date of the Agreement is 30 November 2019.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

<AE503548  PR708548>

Annexure A