Robert Lange Engineering Pty Ltd

[2022] FWCA 1425

[2022] FWCA 1425

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Robert Lange Engineering Pty Ltd

(AG2022/1127)

Robert Lange Engineering Pty Ltd AND AMWU Geelong Area Agreement -2021 - 2024

Building, metal and civil construction industries
COMMISSIONER O'NEILL	MELBOURNE, 29 APRIL 2022

Application for approval of the Robert Lange Engineering Pty Ltd AND AMWU Geelong Area Agreement -2021 - 2024

1. Robert Lange Engineering Pty Ltd  has applied for approval of an enterprise agreement known as the Robert Lange Engineering Pty Ltd AND AMWU Geelong Area Agreement -2021 - 2024 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act) and is a single enterprise agreement.

1. I am satisfied that the Agreement would have been genuinely agreed to but for minor technical errors in relation to the Notice of Employee Representational Rights (the NERR) distributed to employees, and that the employees covered by the Agreement were not likely to have been disadvantaged by the errors.  I exercise the discretion conferred by s.188(2) of the Act.

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. Subject to the undertakings 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. Pursuant to s.202(4) of the Act, the model flexibility term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.

1. The “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) being a bargaining representative for the Agreement, has given notice under s.183 of the Act that it wants the Agreement to cover it. In accordance with s.201(2) I note that the Agreement covers the organisation.

1. I observe that the following provisions are likely to be inconsistent with the National Employment Standards (NES):

·           Clause 31.1 – Annual Leave Accrual; and

·           Clause 39.1 – Public Holiday(s).

However, noting clause 5.6 of the Agreement, I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

1. The Agreement is approved and, in accordance with s.54 of the Act, will operate from 6 May 2022. The nominal expiry date of the Agreement is 1 December 2024.

COMMISSIONER

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Annexure A