The Trustee for the Primech Engineering Unit Trust T/A Primech Engineering Pty Ltd

[2021] FWCA 2923

[2021] FWCA 2923

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

The Trustee for the Primech Engineering Unit Trust T/A Primech Engineering Pty Ltd
(AG2021/4998)

PRIMECH ENGINEERING PTY LTD, CFMEU, AMWU AND YALLOURN POWER STATION & OPEN CUT MINE 2021

Building, metal and civil construction industries
COMMISSIONER LEE	MELBOURNE, 20 MAY 2021

Application for approval of the Primech Engineering Pty Ltd, CFMEU, AMWU and Yallourn Power Station & Open Cut Mine 2021.

[1] An application has been made for approval of an enterprise agreement known as the Primech Engineering Pty Ltd, CFMEU, AMWU and Yallourn Power Station & Open Cut Mine 2021 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by The Trustee for the Primech Engineering Unit Trust T/A Primech Engineering 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] 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.

[4] I note that the notice of employee representational rights (NERR) provided to the employees is an earlier version of the notice which has since been superseded. The NERR provided to employees contains content that is not prescribed by the Fair Work Regulations 2009 and therefore contravenes s.174(1A) of the Act. I am satisfied that this constitutes a minor procedural or technical error for the purposes of s.188(2)(a). Further, I am satisfied that the employees covered by the Agreement were not likely to have been disadvantaged by the error. As a result, I am satisfied that the Agreement has been genuinely agreed to by the employees covered by the Agreement within the meaning of s.188 of the Act.

[5] Pursuant to s.205(2) of the Act, the model consultation term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.

[6] 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.

[7] The “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) and the Construction, Forestry, Mining and Energy Union, being bargaining representatives for the Agreement, have each 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 organisations.

[8] I observe that the following provisions are likely to be inconsistent with the National Employment Standards (NES):

•  Clause 8 – Notice of Termination.

•  Clause 20.6 – Compassionate Leave.

•  Clause 20.10 – Personal Leave.

•  Clause 20.11 – Family/Carer’s Leave.

However, noting the written undertakings provided by the Employer, I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

[9] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 27 May 2021. The nominal expiry date of the Agreement is 31 March 2025.

COMMISSIONER

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Annexure A