SGS Australia Pty Ltd

[2022] FWCA 2073

[2022] FWCA 2073

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

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

SGS Australia Pty Ltd

(AG2022/1654)

SGS Australia Pty Ltd Enterprise Agreement 2022

Manufacturing and associated industries
DEPUTY PRESIDENT BOYCE	SYDNEY, 23 JUNE 2022

Application for approval of the SGS Australia Pty Ltd Enterprise Agreement 2022

1. An application has been made for approval of an enterprise agreement to be known as the SGS Australia Pty Ltd Enterprise Agreement 2022 (Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (Act). It has been made by SGS Australia Pty Ltd (Employer). The Agreement is a single enterprise agreement.

1. There was an issue raised by the Commission with the Employer regarding a discrepancy between the Agreement title set out in the NERR provided to relevant employees, and the title of the Agreement filed with the Commission.[1] Having regard to the submissions of the Employer provided on 20 June 2022, I find that this issue constitutes a minor procedural and/or technical error. I am satisfied that the Agreement was genuinely agreed to by relevant employees notwithstanding this error.[2] I am also satisfied that the employees covered by the Agreement were not likely to have been disadvantaged by the error.[3]

1. There was a further issue raised by the Commission with the Employer regarding the provision of relevant documentation to relevant employees only six days prior to the vote to approve the Agreement (i.e. as opposed to seven clear days as required by ss. 180(3) and (5) of the Act). Having regard to the submissions of the Employer provided on 20 June 2022, I find that these issues constitute minor procedural and/or technical errors. I am satisfied that the Agreement was genuinely agreed to by relevant employees notwithstanding these errors.[4] I am also satisfied that the employees covered by the Agreement were not likely to have been disadvantaged by the errors.[5]

1. There was also an issue raised by the Employer with the Commission as to the title of the Agreement filed with the Commission (as approved by relevant employees). The Employer filed a Form F1 requesting that the year in the title be changed from “2021” to “2022” (pursuant to s.586 of the Act), and lodged a corrected version of the Agreement reflecting such changes. I am satisfied that this correction should be made, and that it is appropriate to do so.  Pursuant to s.586 of the Act, I make the correction.

Undertakings

1. The Employer has provided written undertakings dated 22 June 2022. Those undertakings are attached at Annexure A to this decision and become terms of the Agreement. I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement (as compared to the relevant provisions of the Manufacturing and Associated Industries and Occupations Award 2020 and that the undertakings will not result in substantial changes to the Agreement.

Coverage of employee organisation(s)

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 to be covered by the Agreement. In accordance with s.201(2) of the Act, I note that the Agreement covers this organisation.

Model flexibility term

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.

Conclusion

1. Subject to the undertakings referred to above, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 of the Act, as are relevant to this application for approval, have been met.

1. 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 30 June 2022. The nominal expiry date of the Agreement is 30 June 2024.

DEPUTY PRESIDENT

Annexure A

[1] Noting the requirements of ss. 173 and 174 of the Fair Work Act 2009.

[2] See s.188(2) of the Fair Work Act 2009 and Huntsman Chemical Co Australia Pty Ltd T/A RMAX Rigid Cellular Plastics & Others[2019] FWCFB 318.

[3] Ibid.

[4] Ibid.

[5] Ibid.

Printed by authority of the Commonwealth Government Printer

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