Guidera O’Connor Pty Ltd T/A Guidera O’Connor

[2023] FWCA 2450

[2023] FWCA 2450

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Guidera O’Connor Pty Ltd T/A Guidera O’Connor

(AG2023/2509)

GUIDERA O’CONNOR PTY LTD EMPLOYEE ENTERPRISE AGREEMENT – WA 2023-2027

Building, metal and civil construction industries
COMMISSIONER LIM	PERTH, 11 AUGUST 2023

Application for approval of the Guidera O’Connor Pty Ltd Employee Enterprise Agreement – WA 2023-2027

1. Guidera O’Connor Pty Ltd has applied for the approval of an enterprise agreement known as the Guidera O’Connor Pty Ltd Employee Enterprise Agreement – WA 2023-2027 (the Agreement). The application was made under s 185 of the Fair Work Act 2009 (Cth) (the Act).  The Agreement is a single enterprise agreement.

1. The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) (the Amending Act) made several changes to enterprise agreement approval processes in Part 2-4 of the Act, which commenced operation on 6 June 2023.

1. Under transitional arrangements, amendments made by Part 14 of Schedule 1 to the

Amending Act in relation to genuine agreement requirements for agreement approval applications apply where the notification time for the agreement was on or after 6 June 2023. The genuine agreement provisions in Part 2-4 of the Act, as it was before 6 June 2023, continue to apply in relation to agreement approval applications where the notification time for the agreement was before 6 June 2023. The notification time for the Agreement was 27 January 2023.

1. The Applicant has provided written undertakings.  A copy of the undertakings is attached in Annexure A.  I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement and that the undertakings will not result in substantial changes to the Agreement.

1. In compliance with s 190(4) of the Act, the bargaining representative’s views regarding the undertakings proffered were sought. They were provided with the opportunity to raise and address any objections they had to the undertakings proffered by the Applicant. No objection was raised.

1. Subject to the undertakings referred to above, and on the basis of the material contained in the application and accompanying declarations, 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. Pursuant to s 202(4) of the Act, the model flexibility term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.

1. The Applicant’s Notice of Employee Representative Rights (NERR) did not include the years of operation in the title of the proposed agreement. This differs from the title of the Agreement defined in clause 1.1. The NERR also erroneously referred to the proposed agreement’s coverage over employees performing work in South Australia, instead of Western Australia.

1. Both errors raised the issue of whether the NERR was in the form prescribed by s 174(1A) of the Act. Pursuant to s 188(2) of the Act (as it was prior to 6 June 2023), I am satisfied that the agreement would have been genuinely agreed to but for the minor technical errors made in relation to the requirements set out in s 174(1A) of the Act. I am satisfied that the employees covered by the agreement were not likely to have been disadvantaged by the errors. As a result, I am satisfied that the Agreement has been genuinely agreed within the meaning of s 188(2) of the Act.

1. The Agreement was approved on 11 August 2023 and, in accordance with s 54, will operate from 18 August 2023.  The nominal expiry date of the Agreement is 18 August 2027.

COMMISSIONER

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ANNEXURE A