Flint Group Australia Pty Ltd

[2020] FWCA 2800

[2020] FWCA 2800

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Flint Group Australia Pty Ltd
(AG2020/1170)

BERENDS DRIVE ENTERPRISE AGREEMENT 2020

Manufacturing and associated industries
DEPUTY PRESIDENT YOUNG	MELBOURNE, 29 MAY 2020

Application for approval of the Berends Drive Enterprise Agreement 2020.

[1] Flint Group Australia Pty Ltd (the Employer) has made an application for approval of an enterprise agreement known as the Berends Drive Enterprise Agreement 2020 (the Agreement) pursuant to s 185 of the Fair Work Act 2009 (the Act). The Agreement is a single-enterprise agreement.

[2] The Form F16 nominated Mr Brad Horina and Mr Milorad Trajkovic as employee bargaining representatives for the Agreement. Mr Horina and Mr Trajkovic have lodged Form F18A statutory declarations in support of the approval of the Agreement.

[3] The Employer has provided written undertakings. A copy of the undertakings is attached at Annexure A. I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement and the undertakings will not result in substantial changes to the Agreement. The undertakings are taken to be a term of the Agreement.

[4] Subject to the undertakings referred to above, and on the basis of the material contained in the application, and the accompanying statutory declaration, 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.

[5] Upon lodgement, the sub-clauses of clause 31 of the Agreement contained numbering errors. Amended copies of pages 17 and 18 of the Agreement were provided by the Employer rectifying the numbering errors on 26 May 2020. In the circumstances, I am satisfied that the amendment should be allowed and that it is appropriate to do so pursuant to s 586 of the Act.

[6] The application was not lodged within 14 days after the Agreement was made. The Employer provided submissions upon lodgement on 24 April 2020 as to the explanation for the late lodgement. On the basis of those submissions, pursuant to s 185(3)(b) of the Act, in all the circumstances I consider it fair to extend the time for making the application to the date it was actually made.

[7] I observe that clauses 27.2, 31.1(d) and 31.4 of the Agreement are likely to be inconsistent with the National Employment Standards (NES). However, noting the undertaking provided by the Employer, 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 was approved on 29 May 2020 and, in accordance with s 54, will operate from 5 June 2020. The nominal expiry date of the Agreement is 31 March 2023.

DEPUTY PRESIDENT

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Annexure A