Midway Limited

[2020] FWCA 2746

[2020] FWCA 2746

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Midway Limited
(AG2020/1288)

MIDWAY LIMITED ENTERPRISE AGREEMENT 2019

Timber and paper products industry
COMMISSIONER HARPER-GREENWELL	MELBOURNE, 26 MAY 2020

Application for approval of the MIDWAY LIMITED ENTERPRISE AGREEMENT 2019.

[1] An application has been made for approval of an enterprise agreement known as the MIDWAY LIMITED ENTERPRISE AGREEMENT 2019 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Midway Limited. The Agreement is a single enterprise agreement.

[2] 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. The Agreement does not cover all of the employees of the employer, however, taking into account the factors in Section 186(3) and (3A) I am satisfied that the group of employees was fairly chosen.

[3] The Notice of Employee Representational Rights (NOERR) was not in the form prescribed in Schedule 2.1 of the Fair Work Regulations2009 as required by section 173 of the Fair Work Act 2009 (the Act). Nevertheless, in the circumstances, I am satisfied that this constitutes a minor procedural or technical error for the purposes of s.188(2)(a). Further, having regard to the content of the statutory declaration I am satisfied that the employees covered by the agreement were not likely to have been disadvantaged by the error. As a result, I am satisfied that the Agreement has been genuinely agreed within the meaning of s.188(2) of the Act.

[4] The application was not lodged within 14 days after the agreement was made. Pursuant to s.185(3)(b), in all the circumstances I consider it fair to extend the time for making the application to the date it was actually made.

[5] I observe that clause 11 of the Agreement is likely to be inconsistent with the National Employment Standards (NES). However, noting clause 4.5 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.

[6] The Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) being a bargaining representative for the Agreement, has given notice under s.183 of the Act that it wants the Agreement to cover it. In accordance with s.201(2) I note that the Agreement covers the organisation.

[7] The Agreement was approved on 26 May 2020 and, in accordance with s.54, will operate from 2 June 2020. The nominal expiry date of the Agreement is 30 June 2022.

COMMISSIONER

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