LSH Auto (Sydney) Pty Ltd T/A Mercedes-Benz Sydney

[2022] FWCA 4536

[2022] FWCA 4536

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

LSH Auto (Sydney) Pty Ltd T/A Mercedes-Benz Sydney

(AG2022/5065)

LSH Auto (Sydney) Pty Ltd, Mercedes-Benz Sydney Enterprise Agreement 2022-2025

Vehicle industry
DEPUTY PRESIDENT BOYCE	SYDNEY, 21 DECEMBER 2022

Application for approval of the LSH Auto (Sydney) Pty Ltd, Mercedes-Benz Sydney Enterprise Agreement 2022-2025

1. An application has been made for approval of an enterprise agreement to be known as the LSH Auto (Sydney) Pty Ltd, Mercedes-Benz Sydney Enterprise Agreement 2022-2025 (Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (Act). It has been made by LSH Auto (Sydney) Pty Ltd T/A Mercedes-Benz Sydney (Employer). The Agreement is a single enterprise agreement.

NERR issues

1. There were issues raised by the Commission with the Employer regarding the provision of the NERR on company letterhead, and the provision of the NERR to relevant employees up to 17 days after bargaining commenced.[1] Having regard to the submissions of the Employer provided on 20 December 2022, I find that these issues constitute minor procedural and/or technical errors. I am satisfied that the Agreement was genuinely agreed to by relevant employees notwithstanding these errors.[2] I am also satisfied that the employees covered by the Agreement were not likely to have been disadvantaged by the errors.[3]

Undertakings

1. The Employer has provided written undertakings dated 20 December 2022. Those undertakings are attached at Annexure A to this decision and become terms of the Agreement. I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement (as compared to the relevant provisions of the Vehicle Repair, Services and Retail Award 2020), and that the undertakings will not result in substantial changes to the Agreement.

Coverage of employee organisation

1. The “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU), being a bargaining representative for the Agreement, has given notice under s.183 of the Act that it wants to be covered by the Agreement. In accordance with s.201(2) of the Act, I note that the Agreement covers this organisation.

Conclusion

1. Subject to the undertakings referred to above, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 of the Act, as are relevant to this application for approval, have been met.

1. 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 28 December 2022. The nominal expiry date of the Agreement is 30 June 2025.

DEPUTY PRESIDENT

Annexure A

[1] Noting the requirements of ss.173(3) and 174(1A) of the Fair Work Act 2009.

[2] See s.188(2) of the Fair Work Act 2009 and the decision of the Full Bench of the Commission in Huntsman Chemical Co Australia Pty Ltd T/A RMAX Rigid Cellular Plastics & Others[2019] FWCFB 318.

[3] Ibid.

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