Parchem Construction Supplies Pty Ltd

[2023] FWCA 2943

[2023] FWCA 2943

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185 - Application for approval of a single-enterprise agreement

Parchem Construction Supplies Pty Ltd

(AG2023/2908)

PARCHEM CONSTRUCTION SUPPLIES PTY LTD (WYONG) ENTERPRISE AGREEMENT 2023

Manufacturing and associated industries
DEPUTY PRESIDENT ROBERTS	SYDNEY, 13 SEPTEMBER 2023

Application for approval of the Parchem Construction Supplies Pty Ltd (Wyong) Enterprise Agreement 2023

1. An application has been made for approval of an enterprise agreement known as the Parchem Construction Supplies Pty Ltd (Wyong) Enterprise Agreement 2023 (the Agreement). The Application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Parchem Construction Supplies Pty Ltd (the Applicant). The Agreement is a single enterprise agreement.

1. According to the material filed in support of the application, all employees who would be covered by the agreement and who were employed at the notification time, with the exception of two employees who were absent on annual leave, were provided with a Notice of Employee Representational Rights (NERR) not later than 14 days after the notification time.[1] The notification time was 16 January 2023. The employees who were absent on annual leave were provided with a NERR on 2 February 2023. The Applicant submitted that the two employees in question were represented in the bargaining process by the United Workers Union (UWU), that in-principle agreement as to the terms of the proposed agreement did not occur until 2 August 2023 and that the access period opened shortly thereafter. The Applicant submitted that the delay in providing the NERR to the two employees did not materially affect their representational rights including their capacity to be represented by the UWU. The Applicant said that the issue could be dealt with under s.188(5) of the Act.

1. I accept the submissions on this point by the Applicant. I am satisfied that the failure to provide the NERR to the two employees was a minor procedural error within the meaning of s.188(5) and that the employees were not likely to be disadvantaged by the error.

1. I am satisfied that each of the requirements of ss186, 187 and 188 as is relevant to this application for approval has been met.

1. I note that Clause 2.1(e) of the Agreement provides that if there is any inconsistency between any term of this Agreement and the National Employment Standards (NES), and the NES provides a greater benefit to the Employee, the NES will apply to the extent of the inconsistency.

1. The UWU lodged a Form F18 statutory declaration giving notice under s.183 of the Act that it wants the Agreement to cover it. In accordance with s.201(2) of the Act, I note the Agreement covers the UWU.

1. The Agreement is approved and will operate in accordance with s.54 of the Act. The nominal expiry date of the Agreement is 15 August 2027.

DEPUTY PRESIDENT

[1] See section 173(3) of the Act.

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