TCS Repair Solutions Pty Ltd

[2021] FWCA 6341

[2021] FWCA 6341

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

TCS Repair Solutions Pty Ltd
(AG2021/7549)

TCS REPAIR SOLUTIONS ENTERPRISE AGREEMENT 2021

Building, metal and civil construction industries
DEPUTY PRESIDENT MASSON	MELBOURNE, 19 OCTOBER 2021

Application for approval of the TCS Repair Solutions Enterprise Agreement 2021.

[1] An application has been made for approval of an enterprise agreement known as the TCS Repair Solutions Enterprise Agreement 2021 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by TCS Repair Solutions Pty Ltd. The Agreement is a single enterprise agreement.

[2] 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.

[3] Question 20 on the Form F17 indicates that on 10 September 2021 employees were provided with details of the vote by phone, with the vote taking place on the 14 September 2021. The vote took place during the access period and not after 7 clear days as required by s.180(3) of the Act. However, I am satisfied that in all of the circumstances and having regard to the Huntsman Chemical Company Australia Pty Limited T/A RMAX Rigid Cellular Plastics & Others 1, this constitutes a minor procedural or technical error for the purpose of s.188(2)(a). Further, I am satisfied that the employees covered by the Agreement were not likely to be disadvantaged by the error.

[4] 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.

[5] 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.

[6] I note that several clauses of the Agreement may be inconsistent with the National Employment Standards. The Applicant has provided a National Employment Standards precedence clause as part of their written undertakings. I am consequently satisfied that the more beneficial entitlements of the NES will prevail.

[7] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 26 October 2021. The nominal expiry date of the Agreement is 18 October 2025.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<AE513576  PR735046>

 1   [2019] FWCFB 318.

Annexure A