Phase 4 Electrical and Data Pty Ltd

[2020] FWCA 1494

[2020] FWCA 1494

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Phase 4 Electrical and Data Pty Ltd
(AG2019/5006)

PHASE 4 ELECTRICAL AND DATA PTY LTD SINGLE ENTERPRISE AGREEMENT 2019

Electrical contracting industry
COMMISSIONER YILMAZ	MELBOURNE, 20 MARCH 2020

Application for approval of the Phase 4 Electrical and Data Pty Ltd Single Enterprise Agreement 2019.

[1] An application has been made for approval of an enterprise agreement known as the Phase 4 Electrical and Data Pty Ltd Single Enterprise Agreement 2019 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Phase 4 Electrical and Data Pty Ltd. The Agreement is a single enterprise agreement.

[2] The Notice of Employee Representational Rights (Notice) issued to employees was not in the prescribed form required by s.174 of the Act as at the notification time. The Applicant submits all employees were notified of their right to be represented during the enterprise bargaining process and the incorrect format of the Notice was due to an administrative error that occurred where an old template from a previous enterprise bargaining negotiation was used. The employer submits that employees were not likely disadvantaged by the error as they nominated representatives to represent them throughout the process.

[3] Pursuant to s.188(2), I am satisfied that the Agreement would have been genuinely agreed to but for the minor procedural error made in relation to the requirement in s.173(3). I am satisfied that the employees covered by the Agreement were not likely to have been disadvantaged by the error. As a result, I am satisfied that the Agreement has been genuinely agreed within the meaning of s.188(2) of the Act

[4] 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.

[5] Subject to the undertakings referred to above, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 are relevant to this application for approval and have been met. The Agreement does not cover all of the employees of the employer, however, taking into account the factors in ss.186(3) and (3A) I am satisfied that the group of employees was fairly chosen.

[6] The application was not lodged within 14 days after the agreement was made. Pursuant to s.185(3)(b), in all the circumstances I consider it fair to extend the time for making the application to the date it was actually made.

[7] The Agreement is approved and in accordance with s.54, will operate from 27 March 2020. The nominal expiry date of the Agreement is 20 March 2023.

COMMISSIONER

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Annexure A