Falck (Victoria) Pty Ltd

[2022] FWCA 3797

[2022] FWCA 3797

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Falck (Victoria) Pty Ltd

(AG2022/4365)

Falck Fire Protection & Maintenance Services Agreement 2022

Electrical contracting industry
COMMISSIONER O'NEILL	MELBOURNE, 28 OCTOBER 2022

Application for approval of the Falck Fire Protection & Maintenance Services Agreement 2022

1. Falck (Victoria) Pty Ltd has applied for approval of an enterprise agreement known as the Falck Fire Protection & Maintenance Services Agreement 2022 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act) and is a single enterprise agreement.

1. The Notice of Representational Rights (NERR) distributed to employees was not in prescribed form. However, I am satisfied that the Agreement would have been genuinely agreed to but for the minor technical departure from the NERR requirements under s.174 of the Act and that the employees covered by the Agreement were not likely to have been disadvantaged by this error. Accordingly, I exercise the discretion conferred by s.188(2) of the Act.

1. Employees were not notified of the voting details at the start of the access period pursuant to s.180(3) of the Act. Considering that a majority of employees cast a valid vote, I am satisfied that the Agreement would have been genuinely agreed to but for the minor procedural departure from the requirements of s.180(3), and that the employees covered by the Agreement were not likely to have been disadvantaged by this error. Accordingly, I exercise the discretion conferred by s.188(2) of the Act.

1. 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.

1. 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.

1. The Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia and the Construction, Forestry, Maritime, Mining and Energy Union being bargaining representatives 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.

1. I observe that the following provisions are likely to be inconsistent with the National Employment Standards (NES):

·   Clause 5.3(h) – Casual Employment;

·   Clause 5.6 - Abandonment of Employment;

·   Clause 13.2(a) – Annual Leave; and

·   Clause 13.7.4 – Adoption Leave.

However, noting clause 2(b) of the Agreement, I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

1. The Agreement is approved and, in accordance with s.54 of the Act, will operate from 4 November 2022. The nominal expiry date of the Agreement is 1 October 2023.

COMMISSIONER

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