Vulcan Steel Pty Ltd

[2021] FWCA 1266

[2021] FWCA 1266

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Vulcan Steel Pty Ltd
(AG2021/174)

VULCAN STEEL PTY LTD ENGINEERING STEELS MELBOURNE ENTERPRISE AGREEMENT 2020

Storage services
DEPUTY PRESIDENT YOUNG	MELBOURNE, 9 MARCH 2021

Application for approval of the Vulcan Steel Pty Ltd Engineering Steels Melbourne Enterprise Agreement 2020.

[1] Vulcan Steel Pty Ltd (the Employer) has made an application for approval of an enterprise agreement known as the Vulcan Steel Pty Ltd Engineering Steels Melbourne Enterprise Agreement 2020 (the Agreement) pursuant to s 185 of the Fair Work Act 2009 (the Act). The Agreement is a single-enterprise agreement.

[2] The Employer did not provide employees with 7 clear days between notification of the time, place and method of voting and the commencement of the vote. The Employer provided a statutory declaration addressing this error, signed on 5 March 2021. I am satisfied having regard to the content of that declaration, the accompanying submissions and the Full Bench decision in Huntsman Chemical Company Australia Pty Ltd T/A RMAX Rigid Cellular Plastics & Others 1 (Huntsman)that this constitutes a minor technical or procedural error for the purposes s 188(2)(a) of the Act. Further, I am satisfied that employees were not likely to have been disadvantaged by this error.

[3] Accordingly, notwithstanding the matters identified in paragraph [2] above, I am satisfied that the Agreement has been genuinely agreed within the meaning of s 188(2).

[4] The Employer has provided written undertakings. A copy of the undertakings is attached at Annexure A. I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement and the undertakings will not result in substantial changes to the Agreement. The undertakings are taken to be a term of the Agreement.

[5] Subject to the undertakings referred to above, and on the basis of the material contained in the application, and the accompanying statutory declaration and the additional information and statutory declaration provided by the Employer, 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.

[6] I observe that clause 47.2 of the Agreement is likely to be inconsistent with the National Employment Standards (NES). However, noting clause 5.7 of the Agreement, I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

[7] The United Workers’ Union, being a bargaining representative for the Agreement, has given notice under s 183 of the Act that it seeks to be covered by the Agreement. In accordance with s 201(2) and based on the statutory declaration provided by the organisation, I note that the Agreement covers the organisation.

[8] The Agreement was approved on 9 March 2021 and, in accordance with s 54, will operate from 16 March 2021. The nominal expiry date of the Agreement is 4 October 2023.

DEPUTY PRESIDENT

Annexure A

 1   [2019] FWCFB 318

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