Nyrstar Hobart T/A Nyrstar Hobart Pty Ltd
[2023] FWCA 165
•20 JANUARY 2023
| [2023] FWCA 165 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.185—Enterprise agreement
Nyrstar Hobart T/A Nyrstar Hobart Pty Ltd
(AG2022/5410)
NYRSTAR HOBART PRODUCTION ENTERPRISE AGREEMENT 2022
| Mining industry | |
| DEPUTY PRESIDENT O'NEILL | MELBOURNE, 20 JANUARY 2023 |
Application for approval of the Nyrstar Hobart Production Enterprise Agreement 2022
Nyrstar Hobart Pty Ltd has applied for approval of an enterprise agreement known as the Nyrstar Hobart Production Enterprise Agreement 2022 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act) and is a single enterprise agreement.
The title clause at clause 1.1 of the Agreement contained a typographical error. On 18 January 2023, the Employer filed an amended clause 1.1 to be inserted into the Agreement. Pursuant to s.586 of the Act, I am satisfied that the correction should be made and that it is appropriate to do so.
The Agreement incorporates the Stevedoring Industry Award 2020 at Appendix 5 however, a copy of the Award was not provided to employees. Considering that limited provisions of the Award are relevant and are specifically set out in Appendix 5, I am satisfied that the Agreement would have been genuinely agreed to but for the minor procedural departure from the requirements of s.180(2), and that the employees covered by the Agreement were not likely to have been disadvantaged by this error. Accordingly, I exercise the discretion conferred by s.188(2) of the Act.
The Employer has provided written undertakings. A copy of the undertakings is attached in Annexure A. I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement and that the undertakings will not result in substantial changes to the Agreement. The undertakings are taken to be a term of the Agreement.
Subject to the undertakings referred to above, 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.
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.
The Australian Workers’ Union and the Construction, Forestry, Maritime, Mining and Energy Union being bargaining representatives for the Agreement, have given notice under s.183 of the Act that they want the Agreement to cover them. In accordance with s.201(2) I note that the Agreement covers the organisations.
I observe that clause 6.1 is likely to be inconsistent with the National Employment Standards (NES). However, noting the undertakings given by the Employer, I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.
The Agreement is approved and, in accordance with s.54 of the Act, will operate from 27 January 2023. The nominal expiry date of the Agreement is 19 January 2026.
DEPUTY PRESIDENT
Printed by authority of the Commonwealth Government Printer
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Annexure A
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