MJ Smith Ground Preparation Pty Ltd

[2021] FWCA 4043

[2021] FWCA 4043

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

MJ Smith Ground Preparation Pty Ltd
(AG2021/5751)

MJ SMITH GROUND PREPARATION PTY LTD ENTERPRISE AGREEMENT 2021

Building, metal and civil construction industries
DEPUTY PRESIDENT ASBURY	BRISBANE, 9 JULY 2021

Application for approval of the MJ Smith Ground Preparation Pty Ltd Enterprise Agreement 2021.

[1] MJ Smith Ground Preparation Pty Ltd (the Applicant) applies to the Fair Work Commission (the Commission) for approval of an enterprise agreement known as the Mj Smith Ground Preparation Pty Ltd Enterprise Agreement 2021 (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] I observe that the following clauses may be inconsistent with the National Employment Standards (NES):

•  Clause 15.4 – Annual Leave;

•  Clause 15.8 – Annual Leave;

•  Clause 15.11 – Annual Leave;

•  Clause 16.5 – Paid Personal/Carer’s Leave;

•  Clause 18.2 – Public Holidays; and

•  Clause 24.6 – Notice of termination.

[5] However, I note clause 5.2 of the Agreement provides that where there is an inconsistency between a provision of the Agreement and the NES, and the NES provides a greater benefit, the NES provision will apply to the extent of the inconsistency. On this basis, I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES. I also note that by virtue of s. 55 of the Act, an enterprise agreement must not exclude the NES or any provisions of the NES and s. 56 provides that a term of an enterprise agreement has no effect to the extent that it contravenes s. 55.

[6] The Applicant made an error by commencing the vote on the seventh day of the access period for the Agreement. 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 33 employees covered by the Agreement voted and 32 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.

[7] 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. The Agreement does not cover all of the employees of the employer, however, taking into account s.186(3) and (3A), and on the basis of the information contained in the Form F17, I am satisfied that the group of employees covered by the Agreement was fairly chosen.

[8] The Agreement is approved in accordance with s.54 of the Act and will operate from 16 July 2021. The nominal expiry date of the Agreement is 9 July 2025.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<AE512185  PR731560>

Annexure A