Land Engineering Pty Ltd T/A Land Engineering Pty Ltd

[2022] FWCA 4517

[2022] FWCA 4517

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Land Engineering Pty Ltd T/A Land Engineering Pty Ltd

(AG2022/5116)

Land Engineering Pty Ltd Enterprise Agreement

Water, sewerage and drainage services
DEPUTY PRESIDENT O'NEILL	MELBOURNE, 20 DECEMBER 2022

Application for approval of the Land Engineering Pty Ltd Enterprise Agreement

1. Land Engineering Pty Ltd has applied for approval of an enterprise agreement known as the Land Engineering Pty Ltd Enterprise Agreement (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act) and is a single enterprise agreement.

1. Employees were not informed of the time, place and method of the vote at the start of the access period as required by s.180(3) of the Act. However, considering that all eligible employees cast a valid vote, I am satisfied that the Agreement would have been genuinely agreed to but for the minor procedural departure from the notice requirements under s.180(3), and that the employees covered by the Agreement were not likely to have been disadvantaged by this error. Accordingly, I exercise the discretion conferred by s.188(2) of the Act.

1. 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.

1. 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.

1. Pursuant to s.205(2) of the Act, the model consultation term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.

1. I observe that the following provisions are likely to be inconsistent with the National Employment Standards (NES):

·   Clause 15 – Cashing Out Annual Leave;

·   Clause 16 – Public Holidays;

·   Clause 17(f) – Personal (Sick and Carer’s) Leave; and

·   Clause 25 – Termination of Employment.

However, noting the undertakings given by the Employer, I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

1. The Agreement is approved and, in accordance with s.54 of the Act, will operate from 27 December 2022. The nominal expiry date of the Agreement is 1 May 2024.

DEPUTY PRESIDENT

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Annexure A