Shellharbour Roofing Service Pty Ltd

[2022] FWCA 412

[2022] FWCA 412

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Shellharbour Roofing Service Pty Ltd

(AG2021/9220)

Shellharbour Roofing Service Pty Ltd Enterprise Agreement, 2022 – 2024

Building, metal and civil construction industries
DEPUTY PRESIDENT MANSINI	MELBOURNE, 10 FEBRUARY 2022

Application for approval of the Shellharbour Roofing Service Pty Ltd Enterprise Agreement, 2022 - 2024

1. Shellharbour Roofing Service Pty Ltd has applied for approval of a single enterprise agreement known as the Shellharbour Roofing Service Pty Ltd Enterprise Agreement, 2022 – 2024 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (Cth) (the Act).

1. Since the application was made, the Commission inquired about whether the pre-approval requirements were met and whether the Agreement contains the mandatory terms. Concerns were also raised about whether the Agreement passes the “better off overall” test. Further information and evidence was provided in relation to these matters.

1. The Notice of Employee Representational Rights (Notice) issued at the commencement of bargaining was not strictly compliant with the requirements of s.174 because it was not in the prescribed form (the coverage did not precisely align with the coverage in the Agreement). Further information was provided to support a finding that the relevant employees could understand the scope of the proposed enterprise agreement. In the 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.

1. The relevant employees were notified of the time and place of the vote on the first day of (and not by the start of) the access period, contrary to the requirement at s.180(3). All relevant employees were made aware of the vote and were given a copy of the proposed enterprise agreement by hand that same day, being just after the start of the access period. Of 17 employees covered by the Agreement, 14 cast a vote and voted to approve the Agreement. In the circumstances and having regard to the decision in Huntsman Chemical Company Australia Pty Limited t/a RMAX Rigid Cellular Plastics and Others[2], 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.

1. Accordingly, notwithstanding the errors identified at paragraphs [3] and [4], I am satisfied that the Agreement has been genuinely agreed within the meaning of s.188(2) of the Act.

1. The model flexibility term prescribed by the Fair Work Regulations 2009 (Cth) is taken to be a term of the Agreement, pursuant to s.202(4) of the Act.

1. Noting clause 10.2 of the Agreement, I am satisfied that the more beneficial entitlements of the National Employment Standards in the Act (NES) will prevail where there is an inconsistency between the Agreement and the NES.

1. 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.

1. As there were no bargaining representatives appointed in writing to represent the employees to be covered by the Agreement, the Commission took steps to ensure that 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.

1. 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.

1. The Agreement was approved on 10 February 2022 and, in accordance with s.54, will operate from 17 February 2022. The nominal expiry date of the Agreement is 1 September 2024.
   

1. 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.[3]

DEPUTY PRESIDENT

Annexure A

[1] [2019] FWCFB 318.

[2] [2019] FWCFB 318.

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

Printed by authority of the Commonwealth Government Printer

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