Goldwind Australia Pty Ltd

[2021] FWCA 6414

[2021] FWCA 6414

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Goldwind Australia Pty Ltd
(AG2021/7328)

GOLDWIND AUSTRALIA PTY LTD AUSTRALIA SERVICE AND MAINTENANCE EMPLOYEES ENTERPRISE AGREEMENT 2021

Electrical power industry
DEPUTY PRESIDENT ASBURY	BRISBANE, 26 OCTOBER 2021

Application for approval of the Goldwind Australia Pty Ltd Australia Service and Maintenance Employees Enterprise Agreement 2021

[1] Goldwind Australia Pty Ltd applies to the Fair Work Commission (the Commission) for approval of an enterprise agreement known as the Goldwind Australia Pty Ltd Australia Service and Maintenance Employees Enterprise Agreement 2021 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement.

[2] Undertakings were provided by the Employer in response to concerns the Commission held in relation to the operation of certain clauses and whether the Agreement passes the better off overall test. A copy of the Undertakings is attached as Annexure A to this decision. 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.

[3] The views of each person or organisation the Commission knows is a bargaining representative for the Agreement have been sought in relation to the Undertakings. Pursuant to subsection 190(3) of the Act, I accept the Undertakings. In accordance with s.201(3) of the Act, a copy of the undertakings will be attached to the Agreement and forms part of the Agreement.

[4] A typographical error was identified by the Applicant in clause 24.28 of the Agreement, which relates to Pathway Competencies. The clause incorrectly refers to clause 24.7 of the Agreement and should have correctly referred to clause 24.27 of the Agreement. An application was made pursuant to s.217 of the Act, seeking a variation to remove an ambiguity or uncertainty in the Agreement, by amending clause 24.28 to refer to the correct clause.

[5] The application under s. 217 of the Act was not opposed by the bargaining representatives for the Agreement including the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU). A Decision 1 and Order2 is issued simultaneously with this Decision, varying the Agreement from the date it is approved.

[6] Clause 2.1 of the Agreement states the Agreement commences on the day being the day of the first full pay on or after it is approved by the FWC. This is inconsistent with s.54 of the Act which states that an enterprise agreement approved by the Commission operates from 7 days after the agreement is approved, or if a later day is specified in the agreement, that later day. Accordingly, the Agreement will operate 7 days from the date of this decision.

[7] The nominal expiry date of the Agreement at clause 3.1 states the nominal expiry date of the Agreement is the date falling four years after it commences in accordance with clause 2.1. Section 186(5)(b) of the Act requires that the Commission must be satisfied that the nominal expiry date of an agreement is not more than 4 years after the day on which the Commission approves the agreement. Accordingly the nominal expiry date of the Agreement will be four years from the date of approval.

[8] I am satisfied, on the basis of information set out in the Form F16 Application for approval of an enterprise agreement, the Form F17 Employer’s declaration in support of an application for approval of the Agreement and responses to requests for further information provided by the Applicant, that each of the requirements of ss. l86, 187 and 188 as are relevant to this application for approval have been met. The Agreement does not cover all of the employees of the employer, however, taking into account s.186(3) and (3A), and on the basis of the information contained in the Form F17, I am satisfied that the group of employees covered by the Agreement was fairly chosen.

[9] 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 that organisation. In accordance with s.201(2) of the Act, and based on the declaration provided by the organisation, I note that the Agreement covers this organisation.

[10] The Agreement is approved in accordance with s.54 of the Act and will operate from 2 November 2021. The nominal expiry date of the Agreement is 26 October 2025.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<AE513642  PR735205>

Annexure A

 1   [2021] FWCA 6431.

 2   PR735247.