Magnetic Training & Consultancy Pty Ltd ATF the Magnetic Training & Consultancy Unit Trust T/A Magnetic Power Services
[2022] FWCA 589
•21 FEBRUARY 2022
| [2022] FWCA 589 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.185—Enterprise agreement
Magnetic Training & Consultancy Pty Ltd ATF the Magnetic Training & Consultancy Unit Trust T/A Magnetic Power Services
(AG2022/56)
Magnetic Power Services & ETU Powerline Enterprise Agreement 2020-2023
| Electrical power industry | |
| DEPUTY PRESIDENT YOUNG | MELBOURNE, 21 FEBRUARY 2022 |
Application for approval of the Magnetic Power Services & ETU Powerline Enterprise Agreement 2020-2023
Magnetic Training & Consultancy Pty Ltd ATF the Magnetic Training & Consultancy Unit Trust T/A Magnetic Power Services (the Employer) has made an application for approval of an enterprise agreement known as the Magnetic Power Services & ETU Powerline Enterprise Agreement 2020-2023 (the Agreement) pursuant to s 185 of the Fair Work Act 2009 (the Act). The Agreement is a single-enterprise agreement.
Employees were not provided with 7 clear days notice of the place and method of the vote as required by section 180(3) of the Act. The Employer provided submissions as to this error on 14 February 2022. I am satisfied having regard to those submissions and 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 of s 188(2)(a) of Act. Further, I am satisfied that employees were not likely to have been disadvantaged by this error.
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).
On the basis of the material contained in the application, and the accompanying statutory declaration and the additional information provided by the Employer, I am satisfied that each of the requirements of ss 186, 187, and 188 as are relevant to this application for approval have been met.
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.
Pursuant to s 202(4) of the Act, the model flexibility term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.
I observe that clause 38.7.2(ii) of the Agreement is likely to be inconsistent with the National Employment Standards (NES). However, noting clause 9.1(b) 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.
The Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia, 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.
The Agreement was approved on 21 February 2022 and, in accordance with s 54, will operate from 28 February 2022. The nominal expiry date of the Agreement is 31 August 2023.
DEPUTY PRESIDENT
[1] [2019] FWCFB 318
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