Fleurieu Cranes Pty Ltd

[2023] FWCA 1959

[2023] FWCA 1959

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Fleurieu Cranes Pty Ltd

(AG2023/1892)

FLEURIEU CRANES PTY LTD/CFMEU ENTERPRISE AGREEMENT 2023

Building, metal and civil construction industries
DEPUTY PRESIDENT BOYCE	SYDNEY, 29 JUNE 2023

Application for approval of the Fleurieu Cranes Pty Ltd/CFMEU Enterprise Agreement 2023

1. An application has been made for approval of an enterprise agreement to be known as the Fleurieu Cranes Pty Ltd/CFMEU Enterprise Agreement 2023 (Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (Act). It has been made by Fleurieu Cranes Pty Ltd (Employer). The Agreement is a single enterprise agreement.

NERR issue

1. There was an issue raised by the Commission with the Employer regarding the provision of the NERR to one employee (who was on leave) around one month (as opposed to within 14 days) after notification time.[1] Having regard to the submissions of the Employer provided on 27 June 2023, I find that this issue also constitutes a minor procedural and/or technical error. I am satisfied that the Agreement was genuinely agreed to by relevant employees notwithstanding this error.[2] I am also satisfied that the employees covered by the Agreement were not likely to have been disadvantaged by this error.[3]

Undertakings

1. The Employer has provided written undertakings dated 26 June 2023. Those undertakings are attached at Annexure A to this decision and become terms of the Agreement. I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement (as compared to the relevant provisions of the Mobile Crane Hiring Award 2020), and that the undertakings will not result in substantial changes to the Agreement.

Coverage of employee organisation

1. 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 to be covered by the Agreement. In accordance with s.201(2) of the Act, I note that the Agreement covers this organisation.

Conclusion

1. Subject to the undertakings referred to above, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 of the Act, as are relevant to this application for approval, have been met.

1. 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 6 July 2023. The nominal expiry date of the Agreement is 30 June 2025.

DEPUTY PRESIDENT

Annexure A

[1] Noting the requirements of s.173 of the Fair Work Act 2009.

[2] See s.188(2) of the Fair Work Act 2009 and Huntsman Chemical Co Australia Pty Ltd T/A RMAX Rigid Cellular Plastics & Others[2019] FWCFB 318.

[3] Ibid.

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