Reskey Pty Ltd t/a Jellis Craig Eltham

[2021] FWCA 2530

[2021] FWCA 2530

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Reskey Pty Ltd t/a Jellis Craig Eltham
(AG2021/4606)

JELLIS CRAIG ELTHAM ENTERPRISE AGREEMENT 2021

Real estate industry
DEPUTY PRESIDENT MANSINI	MELBOURNE, 6 MAY 2021

Application for approval of the Jellis Craig Eltham Enterprise Agreement 2021.

[1] Jellis Craig Eltham has applied for approval of a single enterprise agreement known as the Jellis Craig Eltham Enterprise Agreement 2021 (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 steps were met and whether the Agreement passes the “better off overall” test. Further information was provided in relation to these concerns.

[3] The Notice of Employee Representational Rights (Notice) issued at the commencement of bargaining identified another Jellis Craig entity as the entity giving notice and identified the proposed agreement by reference to “Jellis Craig Ivanhoe & Rosanna Enterprise Agreement 2021”. It did specify the classifications to be covered (which include roles performed by employees of Jellis Craig Eltham). The relevant employees were all emailed a copy of the Notice. Also attached to the email was a “Q&A Document” and an enterprise agreement which both identified the bargaining as related to the “Jellis Craig Eltham Enterprise Agreement 2021”. To the extent that there was non-compliance with the requirements of s.174 because the Notice did not identify Jellis Craig Eltham as an employer giving notice and did not correctly name the Agreement, in these particular 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] Written undertakings were given in accordance with s.190 of the Act and are attached at Annexure A (Undertakings). 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. Pursuant to s.201(3) of the Act, the Undertakings are taken to be terms of the Agreement.

[6] As there were no bargaining representatives appointed to represent the employees to be covered by the Agreement the Commission took steps to ensure the relevant employees were served with, and has received evidence that, the employees were informed of: the application; the Commission’s concerns; the Applicant’s responses to those concerns; and were invited to express their views (including about the Undertakings) and none opposed.

[7] On the basis of the material contained in the application, further information provided on request of the Commission and the Undertakings, 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 Agreement was approved on 6 May 2021 and, in accordance with s.54, will operate from 13 May 2021. The nominal expiry date of the Agreement is 6 May 2025.

[9] For the purposes of publication, the signature page of the Agreement has been redacted in part, for confidentiality and as the enterprise agreement when made did not contain the redacted details. 2

DEPUTY PRESIDENT

Annexure A

 1   [2019] FWCFB 318.

 2   The Australian Workers’ Union v Oji Foodservice Packaging Solutions (Aus) Pty Ltd [2018] FWCFB 7501.

Printed by authority of the Commonwealth Government Printer

<AE511334  PR729271>