Swart & Sons Pty Ltd

[2024] FWCA 1806

[2024] FWCA 1806

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

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

Swart & Sons Pty Ltd

(AG2024/1382)

SWART & SONS PTY LTD ENTERPRISE AGREEMENT 2024

Building and Construction Industry
DEPUTY PRESIDENT WRIGHT	SYDNEY, 16 MAY 2024

Application for approval of the Swart & Sons Pty Ltd Enterprise Agreement 2024

Introduction

1. Swart & Sons Pty Ltd (the Employer) has made an application for approval of an enterprise agreement known as the Swart & Sons Pty Ltd Enterprise Agreement 2024 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement.

Transitional Arrangements under the Secure Jobs, Better Pay Amendment

1. The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) (Amending Act) made a number of changes to enterprise agreement approval processes in Part 2-4 of the Fair Work Act, that commenced operation on 6 June 2023.

1. Under transitional arrangements, amendments made by Part 14 of Schedule 1 to the Amending Act in relation to genuine agreement requirements for agreement approval applications apply where the notification time for the agreement was on or after 6 June 2023. The notification time for the Agreement was 4 March 2024.

1. Under transitional arrangements, amendments made by Part 16 of Schedule 1 to the Amending Act in relation to the better off overall test requirements for agreement approval applications apply where the agreement was made on or after 6 June 2023. The Agreement was made on 12 April 2024.

Agreement Content Page

1. The Agreement’s contents page was inconsistent with the clause numbering. An amended contents page was subsequently filed. I consider it appropriate in the circumstances to allow an amendment of a document relating to a matter before the FWC and do so pursuant to s.586(a) of the Act.

Notice of Employee Representational Rights (NERR)

1. In the Employer’s application, the notification time was 4 March 2024. The Form F17B indicated that the last date the NERR was given to a covered employee was 19 March 2024, 15 days after the notification time. It appeared from these responses that not all employees who were employed at the time of notification were given the NERR within 14 days of the notification time as required by s.173(3) of the Act. The Employer provided submissions that this matter constituted a minor technical or procedural error.

1. I am satisfied having regard to those submissions and the decision of the Full Bench in Huntsman Chemical Company Australia Pty Limited T/A RMAX Rigid Cellular Plastics & Others,[1] that this matter constituted a minor technical or procedural error for the purposes of s.188(5)(a) of the Act, and that the employees covered by the Agreement were not likely to have been disadvantaged by the error.

Agreement Explanation

1. In their application, the Employer indicated that employees were provided a copy of the proposed Agreement, company policies and an explanatory document via email and by hand. Employees were advised to seek clarification regarding any questions. However, the Form F17B indicated that 18 of the 25 employees covered by the Agreement were of a non-English speaking background. It was unclear from the responses as to whether additional explanations were provided for these employees, particularly as no previous Agreement applied.

1. The Employer provided submissions about how the terms and effects of the Agreement were explained to employees. I am satisfied having regard to those submissions that the requirements of s. 180(5) of the Act have been met.

Model Flexibility Term

1. The Agreement does not contain a flexibility term that meets the requirements of s.203 of the Act. 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 and can be found in Annexure B.

Section 190 Undertakings

1. The employer 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.

Section 186, 187, 188 and 190

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.

Approval

1. The Agreement is approved and, in accordance with s.54 of the Act, will operate from 23 May 2024. The nominal expiry date of the Agreement is 16 May 2028.

DEPUTY PRESIDENT

[1] [2019] FWCFB 318.

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