Kelly Electrical Pty Ltd

[2020] FWCA 4645

[2020] FWCA 4645

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.210—Enterprise agreement

Kelly Electrical Pty Ltd
(AG2020/2104)

KELLY ELECTRICAL PTY LTD AND EMPLOYEES ENTERPRISE AGREEMENT 2018-2022

Electrical contracting industry
DEPUTY PRESIDENT COLMAN	MELBOURNE, 2 SEPTEMBER 2020

Application for variation of the Kelly Electrical Pty Ltd and Employees Enterprise Agreement 2018-2022.

[1] An application has been made for approval of a variation to the Kelly Electrical Pty Ltd and Employees Enterprise Agreement 2018-2022 (the Agreement). The application was made by Kelly Electrical Pty Ltd (company) pursuant to s 210 of the Fair Work Act 2009 (the Act).

[2] The variation amends clause 17.3 of the Agreement which sets out the penalty rates for employees working overtime generally, and on public holidays (clause 17.3(b)). It reduces the former entitlement from ‘double time’, to ‘time and a half for the first two hours and double time thereafter’. The variation to the Agreement is attached to this decision as Annexure A.

[3] The Applicant has provided written undertakings. A copy of the undertakings is attached in Annexure B. 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.

[4] The application was not accompanied by a signed copy of the variation, as required by s 210(2)(a). The company subsequently provided a signed copy of the variation and I consider that the requirement of s 210(2)(a) has now been met. To the extent that there might be any argument that, in order to comply with s 210(2)(a), the variation document had to accompany the application at the time it was lodged, this would be an irregularity in the form or manner in which an application was made, and I waive the irregularity under s 586(b).

[5] Associated with this procedural question is a substantive matter concerning the documents that must be provided to employees or made available during the ‘access period’ prior to the vote on the variation. For the reasons I set in out in The Royal Melbourne Golf Club Inc [2020] FWCA 2284, it appears that the Act requires that employees who are to vote on a proposed variation to an enterprise agreement must be provided with a copy of, or access to, the variation. The company has confirmed that this did not occur in the present case.

[6] Nevertheless, I consider this to be a ‘minor procedural or technical error’ for the purpose of s 188(2) (which is relevant to variation applications because of s 211(3)(c)). The variation brought about only one substantive change to the Agreement, which was clearly highlighted and explained to employees. This is not a case where the proposed variations were detailed or technical. They did not need to be separately documented in order to be clearly understood.

[7] Subject to the undertakings referred to above, and on the basis of the material contained in the application and accompanying statutory declaration, I am satisfied that each of the requirements of ss 211 and 212 as are relevant to this application for approval have been met.

[8] The variation is approved and the consolidated version of the Agreement, as varied, is attached to this decision.

[9] In accordance with s.216 of the Act, the variation operates from 2 September 2020.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<AE501324 PR722355>