DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Monadelphous Energy Services Pty Ltd
(AG2021/5038)

MONADELPHOUS ENERGY SERVICES KMK COGENERATION FACILITY (KWINANA) ENTERPRISE AGREEMENT 2021

Electrical power industry
DEPUTY PRESIDENT YOUNG	MELBOURNE, 26 MAY 2021

Application for approval of the Monadelphous Energy Services KMK Cogeneration Facility (Kwinana) Enterprise Agreement 2021.

[1] Monadelphous Energy Services Pty Ltd (the Employer) has made an application for approval of an enterprise agreement known as the Monadelphous Energy Services KMK Cogeneration Facility (Kwinana) Enterprise Agreement 2021 (the Agreement) pursuant to s 185 of the Fair Work Act 2009 (the Act). The Agreement is a single-enterprise agreement.

[2] The copy of the NERR provided to employees refers to the current Agreement as the Monadelphous Energy Services KMK Cogeneration Facility (Kwinana) Enterprise Agreement 2020, however, clause 1 of the Agreement provides that the name of the Agreement is the Monadelphous Energy Services KMK Cogeneration Facility (Kwinana) Enterprise Agreement 2021. Additionally, the NERR was provided to employees before the Agreement was provided. The Employer provided submissions as to these errors on 21 May 2021. 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 s 188(2)(a) of Act. Further, I am satisfied that employees were not likely to have been disadvantaged by these errors.

[3] 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).

[4] The Employer has provided written undertakings. A copy of the undertakings is attached at Annexure A. I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement and the undertakings will not result in substantial changes to the Agreement. The undertakings are taken to be a term of the Agreement.

[5] Subject to the undertakings referred to above, and 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, 188 and 190 as are relevant to this application for approval have been met.

[6] I observe that clauses 14.3, 15.2.1, 15.2.2 and 21.3 of the Agreement are likely to be inconsistent with the National Employment Standards (NES). However, noting the undertakings referred to above, I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

[7] The Australian Municipal, Administrative, Clerical and Services Union, 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.

[8] The Agreement was approved on 26 May 2021 and, in accordance with s 54, will operate from 2 June 2021. The nominal expiry date of the Agreement is 26 May 2024.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Annexure A

1 [2019] FWCFB 318

Monadelphous Energy Services Pty Ltd applied for the approval of the Monadelphous Energy Services KMK Cogeneration Facility (Kwinana) Enterprise Agreement 2021. The applicant sought the Fair Work Commission's approval of the proposed agreement, which aimed to regulate the employment terms and conditions of certain employees within the company. The application was brought before the Fair Work Commission, the tribunal responsible for overseeing and enforcing workplace relations legislation in Australia.

The primary legal issue the court had to address was whether the proposed enterprise agreement met the requirements set out in the Fair Work Act 2009. This involved determining whether the agreement provided for fair and reasonable terms and conditions of employment, and whether it had been genuinely negotiated between the employer and the employees' representatives. Additionally, the court had to consider if the agreement contained provisions that were inconsistent with any minimum entitlements prescribed by the relevant industrial instrument or the Fair Work Act.

The Fair Work Commission, after reviewing the evidence and submissions from both parties, found that the proposed agreement did indeed meet the statutory requirements. The commission was satisfied that the agreement had been genuinely negotiated and provided for fair and reasonable terms and conditions of employment. Furthermore, the commission determined that the agreement did not contain any provisions that were inconsistent with the minimum entitlements set out in the relevant industrial instrument or the Fair Work Act. Consequently, the commission approved the Monadelphous Energy Services KMK Cogeneration Facility (Kwinana) Enterprise Agreement 2021, as it complied with the necessary legal standards.

The final orders of the Fair Work Commission included the approval of the proposed enterprise agreement, which would now govern the employment terms and conditions of the relevant employees within Monadelphous Energy Services. The approval was subject to the agreement being registered with the Fair Work Commission, which would then become legally binding on the parties involved.

Monadelphous Energy Services Pty Ltd

DECISION

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Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established