KDR Gold Coast Pty Ltd

[2021] FWCA 260

[2021] FWCA 260

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement

KDR Gold Coast Pty Ltd
(AG2020/3858)

KDR GOLD COAST PTY LTD TECHNICIAN ENTERPRISE AGREEMENT 2020

Electrical contracting industry
DEPUTY PRESIDENT ASBURY	BRISBANE, 19 JANUARY 2021

Application for approval of the KDR Gold Coast Pty Ltd Technician Enterprise Agreement 2020.

[1] KDR Gold Coast Pty Ltd (the Applicant) applies to the Fair Work Commission (the Commission) for approval of an enterprise agreement known as the KDR Gold Coast Pty Ltd Technician Enterprise Agreement 2020 (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 Applicant 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 has 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] I observe that Clause 6.18 – Public holidays may be inconsistent with the National Employment Standards (NES).

[5] However, I note the clause at Part 6 of the Agreement provides that where there is an inconsistency between a provision of the Agreement and the NES, and the NES provides a greater benefit, the NES provision will apply to the extent of the inconsistency. On this basis, I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES. I also note that by virtue of s. 55 of the Act, an enterprise agreement must not exclude the NES or any provisions of the NES and s. 56 provides that a term of an enterprise agreement has no effect to the extent that it contravenes s. 55.

[6] The flexibility term at clause 9.1 of the Agreement does not contain terms as required by s. 203(3) of the Act. The model flexibility set out in the Fair Work Regulations 2009 (Regulations) is therefore taken to be a term of the Agreement.

[7] The consultation term at clause 9.2 of the Agreement does not require the Applicant to provide information to employees, invite employees to give their views or consider employees’ views in relation to a change of regular roster or ordinary hours of work. The model consultation set out in the Fair Work Regulations 2009 (Regulations) is therefore taken to be a term of the Agreement.

[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 Agreement is approved in accordance with s.54 of the Act and will operate from 26 January 2021. The nominal expiry date of the Agreement is 8 January 2023.

DEPUTY PRESIDENT

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Annexure A.