Gasco Pty Ltd ATF Gasco Unit Trust T/A Gasco Pty Ltd
[2023] FWCA 1631
•5 JUNE 2023
| [2023] FWCA 1631 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.185—Enterprise agreement
Gasco Pty Ltd ATF Gasco Unit Trust T/A Gasco Pty Ltd
(AG2023/1428)
GASCO PTY LTD - VICTORIAN ENTERPRISE AGREEMENT 2022-2025
| Oil and gas industry | |
| COMMISSIONER MATHESON | SYDNEY, 5 JUNE 2023 |
Application for approval of the Gasco Pty Ltd - Victorian Enterprise Agreement 2022-2025
An application has been made for approval of an enterprise agreement known as the Gasco Pty Ltd – Victorian Enterprise Agreement 2022-2025 (Agreement). The application was made by Gasco Pty Ltd (Applicant) pursuant to s.185 of the Fair Work Act 2009 (Cth) (Act). The Agreement is a single enterprise agreement.
The Commission identified concerns with the Agreement and provided the Applicant with an opportunity to respond to them. Upon receipt of the Applicant’s responses the matter was listed for hearing on 2 June 2023 so the Commission could clarify the Applicant’s responses and seek the views of the parties. At the hearing the Applicant was represented by Mr H Black, H of Ai Group. Ms Giust, L of the Applicant and Mr Brinduse, G of the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU), a bargaining representative for the Agreement, also appeared at the hearing.
The ACN stated at clause 4(a) of the Agreement was different to the Applicant’s ACN. The Applicant advised that the ACN stated in the Agreement was an error and that it is intended that the Applicant is the employer covered by the Agreement. The CEPU confirmed this understanding. Notwithstanding the error in the Agreement, I am satisfied that the employer covered by the Agreement was intended to be and is Gasco Pty Ltd.
On review of the application, the Commission identified that the responses in the Form F17 regarding demographic data suggested more employees were covered by the Agreement than indicated elsewhere in the Form F17. The Commission sought to understand the reasons for the discrepancy and the Applicant’s explanation was that the demographic data related to the Applicant’s employees nationally rather than Victorian based employees falling within the coverage of the Agreement, that this was an error and that only those employees falling within the coverage were involved in the processes for making the Agreement. This explanation was not contested by the CEPU.
An error was made by the Applicant such that there has not been strict compliance with s.180(3) of the Act. This was raised at the hearing and the parties who appeared agreed that in the circumstances of this application the error was a minor procedural or technical error, employees were not disadvantaged by it and the Agreement would have been genuinely agreed but for the error. In the circumstances of this matter, having heard the submissions of the parties and having considered the strong voting turnout, I am not satisfied that this error prevents the Agreement from being genuinely agreed.
I observe that certain provisions of the Agreement may be inconsistent with the National Employment Standards (NES). However, noting clause 6 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.
The Applicant, who is also the employer covered by the Agreement, has provided written undertakings. A copy of the undertakings is attached at Annexure A of this decision (Undertakings). The views of each person I know is a bargaining representative for the Agreement were sought in relation to the Undertakings and no objections were raised. I am satisfied that the effect of accepting the Undertakings is not likely to:
(a)cause financial detriment to any employee covered by the Agreement; or
(b)result in substantial changes to the Agreement.
Pursuant to s.190(3) of the Act, I accept the Undertakings.
Pursuant to s.205(2) of the Act, the model consultation term prescribed by the Fair Work Regulations 2009 (Cth) is taken to be a term of the Agreement.
Subject to the Undertakings, and on the basis of the materials before the Commission, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 of the Act as are relevant to the application for approval of the Agreement have been met.
The Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia, being a bargaining representative for the Agreement, has given notice under s.183 of the Act that it wants the Agreement to cover it. In accordance with s.201(2) of the Act, I note that the Agreement covers the organisation.
The Agreement is approved and, in accordance with s.54 of the Act, will operate from 12 June 2023. The nominal expiry date of the Agreement is 30 June 2026.
COMMISSIONER
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Annexure A
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