Olex Australia Pty Ltd T/A Nexans Australia

[2024] FWCA 3069

[2024] FWCA 3069

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Olex Australia Pty Ltd T/A Nexans Australia

(AG2024/2991)

NEXANS AUSTRALIA – GEEBUNG WAREHOUSE EMPLOYEES ENTERPRISE AGREEMENT 2024

Manufacturing and associated industries
COMMISSIONER TRAN	MELBOURNE, 22 AUGUST 2024

Application for approval of the Nexans Australia - Geebung Warehouse Employees Enterprise Agreement 2024

1. Olex Australia Pty Ltd T/A Nexans Australia has applied for approval of an enterprise agreement known as Nexans Australia – Geebung Warehouse Employees Enterprise Agreement 2024 (the Agreement) under s 185 of the Fair Work Act 2009 (Act).

1. The Agreement is a single enterprise agreement.

1. It appears that the Employer issued an earlier version of the Notice and therefore did not comply with s 174(1A). Aside from use of the earlier version of the Notice, there were no substantive differences. I have previously detailed the differences between the pre-6 June 2023 and post-6 June 2023 Notice in Application by AJS Electrical Contracting Pty Ltd T/A AJS Electrical Contracting [2023] FWC 3343 at [34]. I consider the use of the earlier Notice is a minor technical error.

1. I am satisfied with the Employer’s responses to my concerns regarding the use of the earlier Notice and I disregard the error in accordance with s 188(5) of the Act as I am also satisfied that employees were not disadvantaged by the error.

1. 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.

1. The Agreement does not contain a comprehensive delegates’ rights term, as required by s 205A(1) of the Act. Under s 205A(2) of the Act, the workplace delegates’ rights term in Clause 40A of the Manufacturing and Associated Industries and Occupations Award 2020 is taken to be a term of the Agreement.

1. Subject to the undertakings and other matters 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.

1. The Employer provided an amended copy of the Agreement, together with the variation identified below, to incorporate the undertakings addressing my concerns, which had been specified to the Employer under s 191A. No objection to the amendments was raised by employees.

1. The Agreement is approved and, in accordance with s 54 of the Act, will operate from 29 August 2024.

1. In accordance with Clause 3, the nominal expiry date of the Agreement is 5 January 2027.

Variation under s 218A

1. Section 218A of the Act allows the Commission to correct or amend obvious errors, defects or irregularities. It is a discretionary power, and the Commission first be satisfied that the identified errors or amendments sought are obvious errors, defects or irregularities

1. I determined to vary the Agreement on my own initiative, following the identification of the wage schedule not indicating pay frequency.

1. The Applicant provided an amended copy of the Agreement, as detailed above.

1. I am satisfied that the amendments should be made and that it is appropriate to do so in accordance with s 218A. The variation will operate from the date the Agreement commences.

1. The Agreement attached to this Decision is the Agreement as varied and will operate from 29 August 2024.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

<AE525877  PR778558>

Annexure A