Ventia Pty Ltd (formerly a Broadspectrum Company) t/a Ventia Pty Limited

[2021] FWCA 2209

[2021] FWCA 2209

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.210—Enterprise agreement

Ventia Pty Ltd (formerly a Broadspectrum Company) t/a Ventia Pty Limited
(AG2021/4374)

BROADSPECTRUM WA DEFENCE FACILITIES ENTERPRISE AGREEMENT 2019

Building, metal and civil construction industries
DEPUTY PRESIDENT MANSINI	MELBOURNE, 22 APRIL 2021

Application for variation of the Broadspectrum WA Defence Facilities Enterprise Agreement 2019.

[1] An application has been made by Ventia Pty Limited for approval of a variation to the Broadspectrum WA Defence Facilities Enterprise Agreement 2019 (the Agreement), pursuant to s.210 of the Fair Work Act 2009 (Cth) (the Act).

[2] The variation: amends the provision for accrued days off by shiftworkers for compliance with the Building Code; inserts a new Appendix 7 which provides pay and conditions for Garden Island Powerhouse Workers (as defined); and provides a commencement payment. The variation is attached to this decision as Annexure B.

[3] The application was not accompanied by a signed copy of the variation instrument and Agreement as varied, as required by s.210(2)(a). Ventia Pty Limited subsequently provided the signed copies. 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 relevant employees were given a communication which included all details of the proposed variation but were not provided with a copy of, or access to, the written text of the variation instrument as required by s.180(2) and s.211(3)(c) of the Act. 1 The Applicant asked the Commission to waive this non-compliance in accordance with s.188(2) and the bargaining representative did not oppose. I consider the proposed variation was clearly communicated to the employees and the instrument did not need to be separately provided in order for the changes to be understood. 61 of the 70 eligible employees voted in favour of the variation. In the circumstances and having regard to the decision in Huntsman Chemical Company Australia Pty Limited t/a RMAX Rigid Cellular Plastics and Others,2 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 varied Agreement has been genuinely agreed within the meaning of s.188(2) of the Act (relevant to this variation application, pursuant to s.211(3)(c)).

[6] For completeness, the original Agreement was approved with written undertakings pursuant to s.190. Those undertakings, attached to this decision as Annexure A, form part of the Agreement as varied. The nominal expiry date of the Agreement is 19 May 2023.

[7] I am satisfied that each of the requirements of ss.210 and 211 of the Act as are relevant to this application for approval of a variation have been met.

[8] The variation is approved and the consolidated version of the Agreement, as varied, is attached as Annexure C to this decision. In accordance with s.216 of the Act, the variation operates from 22 April 2021.

DEPUTY PRESIDENT

 1   The Royal Melbourne Golf Club Inc [2020] FWCA 2284.

 2   [2019] FWCFB 318.

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