Ertech Pty Ltd

[2021] FWCA 5583

[2021] FWCA 5583

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Ertech Pty Ltd
(AG2021/6688)

ERTECH PTY LTD PLUTO TRAIN 2 PROJECT AGREEMENT

Building, metal and civil construction industries
DEPUTY PRESIDENT EASTON	SYDNEY, 7 SEPTEMBER 2021

Application for approval of the Ertech Pty Ltd Pluto Train 2 Project Agreement.

[1] Ertech Pty Ltd (the Employer) has made an application for the approval of the Ertech Pty Ltd Pluto Train 2 Project Agreement (the Agreement). The application was made under s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise greenfields agreement.

[2] The Employer has provided written undertakings, a copy of which are attached as Annexure A to this decision. The undertakings can be accepted under s.190 of the Act because I am satisfied that they will not cause financial detriment to any employee covered by the Agreement and will not result in substantial changes to the Agreement. The undertakings are taken to be a term of the agreement pursuant to s.191 of the Act.

[3] Subject to the Employer’s undertakings, I am satisfied that each relevant requirement in sections 186, 187, 188 and 190 of the Act has been met.

[4] The Agreement does not contain all of the requisite consultation terms (per s.205(1) of the Act). The model consultation term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement (per s.205(2) of the Act).

[5] The agreement does not contain a flexibility term, as required by s202-s203 of the Act. 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] I note that Clause 27 – Public Holidays, Clause 33(17) – Abandonment of Employment and Clause 34(1) – Severance are potentially inconsistent with the National Employment Standards (NES). Noting the undertaking provided by the Employer, I am satisfied that the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

[7] The Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union known as the Australian Manufacturing Workers’ Union (AMWU), The Australian Workers’ Union (AWU), the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) and the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) were bargaining representatives for the Agreement and 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 AMWU, AWU, CFMMEU and CEPU.

[8] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 14 September 2021. The nominal expiry date of the Agreement is 7 September 2025.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

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Annexure A