Tutt Bryant Group Limited t/a Tutt Bryant Heavy Lift & Shift (NT)

[2021] FWCA 2625

[2021] FWCA 2625

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Tutt Bryant Group Limited t/a Tutt Bryant Heavy Lift & Shift (NT)
(AG2021/4558)

TUTT BRYANT HEAVY LIFT & SHIFT NT WET HIRE CRANE OPERATIONS ENTERPRISE AGREEMENT 2021

Building, metal and civil construction industries
DEPUTY PRESIDENT MANSINI	MELBOURNE, 10 MAY 2021

Application for approval of the Tutt Bryant Heavy Lift & Shift NT Wet Hire Crane Operations Enterprise Agreement 2021.

[1] Tutt Bryant Group Limited has applied for approval of a single enterprise agreement known as the Tutt Bryant Heavy Lift & Shift NT Wet Hire Crane Operations Enterprise Agreement 2021 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (Cth) (the Act).

[2] Since the application was made, the Commission raised concerns about whether: the pre-approval requirements were met, the Agreement contravenes s.55 of the Act, contains the mandatory terms, passes the better off overall test. Further information was provided in relation to these concerns.

[3] The application was accompanied by a signature page that did not comply in all respects with Regulation 2.06A of the Fair Work Regulations 2009 (Cth). An amended signature page was subsequently filed. I consider it appropriate in the circumstances to waive an irregularity in the form or manner in which an application was made, and do so pursuant to s.586(b).

[4] The steps taken to notify the relevant employees of the time, place and method of the vote were not strictly compliant with the requirements of s.174 because they were taken on the first day after the start of the access period (and not by the start of the access period). Notwithstanding this non-compliance, 14 of the 18 relevant employees cast a vote. 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.

[5] Accordingly, I am satisfied that the Agreement has been genuinely agreed within the meaning of s.188(2) of the Act.

[6] The model consultation term prescribed by the Regulations is taken to be a term of the Agreement, pursuant to s.205(2) of the Act.

[7] Noting clause 1 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.

[8] Written undertakings were given in accordance with s.190 of the Act and are attached at Annexure A (Undertakings). The employee bargaining representatives did not oppose the 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.

[9] 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.

[10] The Agreement was approved on 10 May 2021 and, in accordance with s.54, will operate from 17 May 2021. The nominal expiry date of the Agreement is 10 May 2024.

[11] 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. 2

DEPUTY PRESIDENT

Annexure A

 1   [2019] FWCFB 318.

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

Printed by authority of the Commonwealth Government Printer

<AE511391  PR729676>