TOP Welding & Construction Pty Ltd

[2022] FWCA 744

[2022] FWCA 744

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s. 185—Enterprise agreement

TOP Welding & Construction Pty Ltd

(AG2022/239)

TOP Welding & Construction Latrobe Valley Power Industry Agreement 2022-2026

Manufacturing and associated industries
COMMISSIONER MIRABELLA	MELBOURNE, 4 MARCH 2022

Application for approval of the TOP Welding & Construction Latrobe Valley Power Industry Agreement 2022-2026.

1. TOP Welding & Construction Pty Ltd (the Employer) has made an application for approval of an enterprise agreement known as the TOP Welding & Construction Latrobe Valley Power Industry Agreement 2022-2026 (the Agreement) pursuant to s. 185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement.

1. 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.

1. Subject to the undertakings referred to above, and on the basis of the material contained in the application and accompanying declaration, I am satisfied that each of the requirements of sections 186, 187, 188 and 190, as are relevant to this application for approval, have been met.

1. The Employer included an incorrect title for the Agreement in the notice of employee representational rights provided to employees. Pursuant to s. 188(2), I am satisfied that the Agreement would have been genuinely agreed to but for the minor procedural error made in relation to the requirement in s. 174(1A) of the Act. 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 within the meaning of s. 188(2) of the Act.

1. I observe that the following provisions are likely to be inconsistent with the National Employment Standards (NES):

·   Clause 17: Annual leave

·   Clause 17A: Public holidays

·   Clause 22: Redundancy

However, I am satisfied that the Employer’s written undertaking in Annexure A means that the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

1. The Form F17 “Employer declaration for an enterprise agreement” (Form F17) lodged contained typographical errors. The Employer has requested that the Commission exercise its discretion to correct these errors pursuant to s. 586 of the Act. I am satisfied that the corrections should be made and that it is appropriate to do so pursuant to s. 586 of the Act. On 3 March 2022, the Employer filed the amended version of the Form F17 correcting the errors identified.

1. The "Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers’ Union, being a bargaining representative for the Agreement, has given notice under s. 183 of the Act that it wants the Agreement to cover it. In accordance with s. 201(2) and based on the declaration provided by the organisation, I note that the Agreement covers the organisation.

1. The Agreement was approved on 4 March 2022 and, in accordance with s. 54, will operate from 11 March 2022. The nominal expiry date of the Agreement is 11 March 2026.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

<AE515191  PR738941>

Annexure A