Grace Records Management (Aust) Pty Ltd T/A Grace Records Management (Australia) Pty Ltd

[2024] FWCA 2818

[2024] FWCA 2818

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185 - Application for approval of a single-enterprise agreement

Grace Records Management (Aust) Pty Ltd T/A Grace Records Management (Australia) Pty Ltd

(AG2024/2486)

GRACE RECORDS MANAGEMENT ENTERPRISE AGREEMENT NSW 2023-2026

Road transport industry
DEPUTY PRESIDENT ROBERTS	SYDNEY, 31 JULY 2024

Application for approval of the Grace Records Management Enterprise Agreement NSW 2023-2026

1. An application has been made for approval of an enterprise agreement known as the Grace Records Management Enterprise Agreement NSW 2023-2026 (the Agreement). The Application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Grace Records Management (Australia) Pty Ltd (the Applicant). The Agreement is a single enterprise agreement.

1. Following receipt of the application, the Commission raised a concern with the Applicant about the process leading up to the making of the proposed agreement. It was noted that the notification time for the proposed agreement was 5 October 2023 and the last day on which a Notice of Employee Representational Rights (NERR) was provided to employees was 24 October 2023. This was more than the 14-day period specified for the provision of the NERR by s.173(3) of the Act. It was submitted that the delay arose because of an error in the original NERR. The Transport Workers’ Union of Australia NSW/QLD (Interim Governance) Branch (TWU), being a bargaining representative for the proposed agreement, was made aware of the error and made submissions to the effect that employees at a certain site were “left off” the original NERR in error and that the error was subsequently rectified. The TWU said this could be regarded as a minor procedural error and that employees were not likely to have been disadvantaged by the error. I am satisfied that this is the case and propose to exercise my discretion under s.188(5) and disregard the error.

1. The Applicant has provided a written undertaking (Annexure A). In accordance with s.190(4) of the Act the views of the bargaining representatives for the agreement were sought in relation to the undertaking. The bargaining representatives have indicated their acceptance of the undertaking provided. I am satisfied that the undertaking will not cause financial detriment to any employee covered by the Agreement and that the undertaking will not result in substantial changes to the Agreement.

1. Subject to the undertaking referred to above, I am satisfied that each requirement of ss186, 187 and 188 as is relevant to this application for approval has been met. The undertaking is taken to be a term of the Agreement.

1. I note that Clause 4 of the Agreement provides that the National Employment Standards (NES) contained within the Fair Work Act apply to all employees covered by this agreement. Where there is an inconsistency between this agreement and the NES, and the NES provides a greater benefit, the NES provision will apply to the extent of the inconsistency.

1. The TWU lodged a Form F18 statutory declaration giving 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 the Agreement covers the TWU.

1. The Agreement is approved and will operate in accordance with s.54 of the Act. The nominal expiry date of the Agreement is 30 November 2026.

1. In the course of the approval process, an error was identified in clauses 10 and 37 of the Agreement. Those clauses made reference to “clause X” of the Agreement. The Applicant confirmed that where that reference appears in clause 10 of the Agreement it was intended that the reference be to “clause 10” and where it appears at clause 37, the reference was intended to be reference to “clause 38”. The Applicant applied for a variation to the Agreement under s.218A to reflect that intention and to correct the defect. This was supported by the TWU. I am satisfied that it is appropriate to vary the Agreement accordingly. The variation will take effect from the date the Agreement commences operation.  
   

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<AE525643  PR777721>

Annexure A