Horan & Bird Energy Pty Ltd T/A Horan & Bird
[2022] FWCA 3044
•5 SEPTEMBER 2022
| [2022] FWCA 3044 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.185—Enterprise agreement
Horan & Bird Energy Pty Ltd T/A Horan & Bird
(AG2022/3549)
Horan & Bird Energy Pty Ltd Enterprise Agreement 2022
| Electrical contracting industry | |
| DEPUTY PRESIDENT MASSON | MELBOURNE, 5 SEPTEMBER 2022 |
Application for approval of the Horan & Bird Energy Pty Ltd Enterprise Agreement 2022.
An application has been made for approval of an enterprise agreement known as the Horan & Bird Energy Pty Ltd Enterprise Agreement 2022 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Horan & Bird Energy Pty Ltd T/A Horan & Bird. The Agreement is a single enterprise agreement.
The Employer 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. The undertakings are taken to be a term of the Agreement.
The Form F17 indicates that employees were provided with details of the vote on 10 August 2022 and voting commenced on 17 August 2022. Employees were therefore not notified of the time, place and method of the vote at least 7 clear days before voting commenced as required by s.180(3) of the Act. However, I am satisfied that in all of the circumstances and having regard to the Full Bench decision in Huntsman Chemical Company Australia Pty Limited T/A RMAX Rigid Cellular Plastics & Others[1], this constitutes a minor procedural or technical error for the purpose of s.188(2)(a). Further, I am satisfied that the employees covered by the Agreement were not likely to be disadvantaged by the error.
Subject to the undertakings referred to above, 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.
I note that the notification requirements in clause 25 may be inconsistent with the National Employment Standards. Given the National Employment Standards precedence clause at clause 7 of the Agreement, I am satisfied that the more beneficial entitlements of the NES will prevail.
The Agreement is approved and, in accordance with s.54 of the Act, will operate from 12 September 2022. The nominal expiry date of the Agreement is 1 September 2025.
DEPUTY PRESIDENT
Annexure A
[1] [2019] FWCFB 318.
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