Lineage AUS TRS Pty Ltd

[2020] FWCA 4255

[2020] FWCA 4255

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Lineage AUS TRS Pty Ltd
(AG2020/2006)

LINEAGE AUS TRS PTY LTD CONVENIENCE & QSR TULLAMARINE ENTERPRISE AGREEMENT 2020

Storage services
DEPUTY PRESIDENT YOUNG	MELBOURNE, 12 AUGUST 2020

Application for approval of the Lineage AUS TRS Pty Ltd Convenience & QSR Tullamarine Enterprise Agreement 2020.

[1] Lineage AUS TRS Pty Ltd (the Employer) has made an application for approval of an enterprise agreement known as the Lineage AUS TRS Pty Ltd Convenience & QSR Tullamarine Enterprise Agreement 2020 (the Agreement) pursuant to s 185 of the Fair Work Act 2009 (the Act). The Agreement is a single-enterprise agreement.

[2] One employee covered by the Agreement was issued with a copy of the Notice of Employee Representational Rights more than 14 days after the notification time, contrary to s 173(3) of the Act. The Employer provided submissions addressing the error on 7 August 2020. I am satisfied having regard to the Full Bench decision in Huntsman Chemical Company Australia Pty Ltd T/A RMAX Rigid Cellular Plastics & Others 1(Huntsman)that this constitutes a minor technical or procedural error for the purposes s 188(2)(a) of the Act. Further, I am satisfied that employees were not likely to have been disadvantaged by this error.

[3] Accordingly, notwithstanding the matters identified in paragraph [2] above, I am satisfied that the Agreement has been genuinely agreed within the meaning of s 188(2).

[4] The Employer has provided written undertakings. A copy of the undertakings is attached at Annexure A. I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement and the undertakings will not result in substantial changes to the Agreement. The undertakings are taken to be a term of the Agreement.

[5] Subject to the undertakings referred to above, and on the basis of the material contained in the application, the accompanying statutory declaration and the additional information provided by the Employer, 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.

[6] I observe that clause 3.2.1 of the Agreement is likely to be inconsistent with the National Employment Standards (NES). However, noting clause 1.5 of the Agreement, I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

[7] The United Workers’ Union, being a bargaining representative for the Agreement, has given notice under s 183 of the Act that it seeks to be covered by the Agreement. In accordance with s 201(2) and based on the statutory declaration provided by the organisation, I note that the Agreement covers the organisation.

[8] The Agreement was approved on 12 August 2020 and, in accordance with s 54, will operate from 19 August 2020. The nominal expiry date of the Agreement is 30 June 2024.

DEPUTY PRESIDENT

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Annexure A

 1   [2019] FWCFB 318