McCrae Consultancy Group Pty Ltd

[2021] FWCA 3012

[2021] FWCA 3012

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

McCrae Consultancy Group Pty Ltd
(AG2021/4918)

MCCRAE CONSULTANCY GROUP PTY LTD WORKPLACE AGREEMENT 2020

Agricultural industry
DEPUTY PRESIDENT ASBURY	BRISBANE, 26 MAY 2021

Application for approval of the McCrae Consultancy Group Pty Ltd Workplace Agreement 2020.

[1] McCrae Consultancy Group Pty Ltd (the Applicant) applies to the Fair Work Commission (the Commission) for approval of an enterprise agreement known as the McCrae Consultancy Group Pty Ltd Workplace Agreement 2020 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement.

[2] Undertakings were provided by the Applicant in response to concerns the Commission held in relation to the operation of certain clauses and whether the Agreement passes the better off overall test. A copy of the Undertakings is attached as Annexure A to this decision. I am satisfied that the effect of accepting the Undertakings is not likely to:

(a) cause financial detriment to any employee covered by the Agreement; or

(b) result in substantial changes to the Agreement.

[3] The views of each person or organisation the Commission knows is a bargaining representative for the Agreement have been sought in relation to the Undertakings. Pursuant to subsection 190(3) of the Act, I accept the Undertakings. In accordance with s.201(3) of the Act, a copy of the undertakings will be attached to the Agreement and forms part of the Agreement.

[4] The Applicant made an error by calculating the seven day access period for the Agreement by including the day notification of the vote was made. As a result of this error, the vote for the Agreement occurred before the conclusion of the access period required by s.180(3) of the Act. Having regard to the decision of the Full Bench in Huntsman Chemical Company Australia Pty Limited T/A RMAX Rigid Cellular Plastics & Others, I am satisfied that this is a minor procedural or technical error and that pursuant to s. 188(2)(a) of the Act I can be satisfied that the Agreement would have been genuinely agreed but for that minor error. In this regard, I am satisfied that the employees covered by the Agreement were not likely to be disadvantaged by the error. I have also had regard to the fact that all five employees covered by the Agreement voted and all five employees voted to approve the Agreement. Accordingly, there is no basis for finding that the error had any bearing on the outcome of the ballot to approve the Agreement.

[5] The Agreement does not contain a flexibility term that is consistent with the requirements in s.205 of the Act. Pursuant to s.205(2) of the Act, the model flexibility term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.

[6] I am satisfied, on the basis of information set out in the Form F16 Application for approval of an enterprise agreement, the Form F17 Employer’s declaration in support of an application for approval of the Agreement and responses to requests for further information provided by the Applicant, that each of the requirements of ss. l86, 187 and 188 as are relevant to this application for approval have been met.

[7] The Agreement is approved in accordance with s.54 of the Act and will operate from 2 June 2021. The nominal expiry date of the Agreement is 26 May 2025.

DEPUTY PRESIDENT

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Annexure A