Firesafe Systems Pty Ltd

[2022] FWCA 4131

[2022] FWCA 4131

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Firesafe Systems Pty Ltd

(AG2022/4643)

FIRESAFE SYSTEMS PTY LTD EBA (WA) 2023-2026

Building, metal and civil construction industries
COMMISSIONER P RYAN	SYDNEY, 24 NOVEMBER 2022

Application for approval of the Firesafe Systems Pty Ltd EBA (WA) 2023-2026

1. Firesafe Systems Pty Ltd (Employer) has made an application for approval of an enterprise agreement known as the Firesafe Systems Pty Ltd EBA (WA) 2023-2026 (Agreement) pursuant to s.185 of the Fair Work Act 2009 (FW Act). The Agreement is a single enterprise agreement.

Pre-approval Statutory Timeframes

1. There were less than seven clear days from the date on which employees were notified of the time, place and method of voting and the commencement of the vote. Section 180(3) of the Act requires at least seven clear days. The Employer provided submissions that this constituted a minor procedural error and that the employees covered by the agreement were not likely to have been disadvantaged by this error.

1. I am satisfied having regard to those submissions and the decision of the Full Bench in Huntsman Chemical Company Australia Pty Limited T/A RMAX Rigid Cellular Plastics & Others,[1] that this constitutes a minor technical or procedural error for the purposes of s.188(2)(a) of the Act, and that the employees covered by the Agreement were not likely to have been disadvantaged by the error.

1. As a result, I am satisfied that the Agreement has been genuinely agreed within the meaning of s.188(2) of the Act.

Sections 186, 187 and 188

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.

Model Flexibility Term

1. The Agreement does not contain a flexibility term that meets the requirements of s.203 of the FW Act. Pursuant to s.202(4) of the FW Act, the model flexibility term prescribed by the Fair Work Regulations 2009 (FW Regulations) is taken to be a term of the Agreement.

Model Consultation Term

1. The Agreement does not contain a consultation term, as required by s.205(1) of the FW Act. Pursuant to s.205(2) of the FW Act, the model consultation term prescribed by the FW Regulations is taken to be a term of the Agreement.

National Employment Standards (NES)

1. I observe that clauses 7.8, 23, 24, 25 and 28 of the Agreement may be inconsistent with the NES. However, noting clause 5.2 of the Agreement, I am satisfied that the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

Section 183 Bargaining representatives

1. The Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) being a bargaining representative for the Agreement, has given notice under s.183 of the FW Act that it wants the Agreement to cover it.

1. In accordance with s.201(2), I note that the Agreement covers the CEPU.

Approval

1. The Agreement is approved and, in accordance with s.54 of the FW Act, will operate from 1 December 2022. The nominal expiry date of the Agreement is 31 July 2026.

COMMISSIONER

[1] [2019] FWCFB 318.

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