O&M Pty Ltd

[2021] FWCA 2950

[2021] FWCA 2950

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

O&M Pty Ltd
(AG2021/4835)

CFMEU O&M MECHANICAL SERVICES ENTERPRISE AGREEMENT 2020

Building, metal and civil construction industries
DEPUTY PRESIDENT MANSINI	MELBOURNE, 21 MAY 2021

Application for approval of the CFMEU O&M Mechanical Services Enterprise Agreement 2020.

[1] O&M Pty Ltd has applied for approval of a single enterprise agreement known as the CFMEU O&M Mechanical Services Enterprise Agreement 2020 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (Cth) (the Act).

[2] Since the application was made, the Commission raised concerns about whether the pre-approval requirements were met and whether the Agreement contravenes s.55 of the Act. Further information was provided in relation to these concerns.

[3] The steps taken to notify the relevant employees of the time, place and method of the vote were not strictly compliant with the requirements of s.180(3) as employees were notified of the time, place and method of the vote during the access period (and not by the start of the access period). The evidence is that 14 of the 16 relevant employees cast a vote. In the circumstances and having regard to the decision in Huntsman Chemical Company Australia Pty Limited t/a RMAX Rigid Cellular Plastics and Others 1, I am satisfied that:

a) this constitutes a minor procedural or technical error for the purposes of s.188(2)(a); and
b) the employees to be covered by the Agreement were not likely to have been disadvantaged by this error.

[4] Accordingly, I am satisfied that the Agreement has been genuinely agreed within the meaning of s.188(2) of the Act.

[5] Noting clause 7 of the Agreement, I am satisfied that: the more beneficial entitlements of the National Employment Standards in the Act (NES) will prevail where there is an inconsistency between the Agreement and the NES; and that the dispute resolution procedure will apply to disputes about the NES.

[6] A written undertaking was given in accordance with s.190 of the Act and is attached at Annexure A (Undertaking). The bargaining representatives did not oppose the Undertaking. I am satisfied that the Undertaking will not cause financial detriment to any employee covered by the Agreement and that the Undertaking will not result in substantial changes to the Agreement. Pursuant to s.201(3) of the Act, the Undertaking is taken to be a term of the Agreement.

[7] On the basis of the material contained in the application, further information provided on request of the Commission and the Undertaking, 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.

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

[9] The Agreement was approved on 21 May 2021 and, in accordance with s.54, will operate from 28 May 2021. The nominal expiry date of the Agreement is 31 March 2023.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

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 1   [2019] FWCFB 318.

Annexure A