WACO Kwikform Limited

[2021] FWCA 6898

[2021] FWCA 6898

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

WACO Kwikform Limited
(AG2021/8406)

WACO KWIKFORM / AGL LOY YANG POWER STATION AND LOY YANG MINE ENTERPRISE AGREEMENT 2021

Building services
COMMISSIONER O'NEILL	MELBOURNE, 30 NOVEMBER 2021

Application for approval of the Waco Kwikform / AGL Loy Yang Power Station and Loy Yang Mine Enterprise Agreement 2021

[1] WACO Kwikform Limited has applied for approval of an enterprise agreement known as the Waco Kwikform / AGL Loy Yang Power Station and Loy Yang Mine Enterprise Agreement 2021 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act) and is a single enterprise agreement.

[2] The Employer notified employees of the time, place, and voting method on 26 October 2021. Due to a positive COVID-19 case in the workplace, employees were subsequently notified on 2 November 2021 that the voting method had changed. Employees were therefore not informed of the voting method at the start of the access period as required by s.180(3) of the Act. Considering that all employees cast a valid vote, I am satisfied that the Agreement would have been genuinely agreed to but for the minor procedural departure from the requirements of s.180(3), and that the employees covered by the Agreement were not likely to have been disadvantaged by this error. Accordingly, I exercise the discretion conferred by s.188(2) of the Act.

[3] I am satisfied that each of the requirements of ss.186, 187 and 188 as are relevant to this application for approval have been met.

[4] The Construction, Forestry, Maritime, Mining and Energy 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) I note that the Agreement covers the organisation.

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

•  Clause 10.10 – Notice of Termination;

•  Clause 21.2.4 – Annual Leave;

•  Clause 21.5.1 – Compassionate Leave;

•  Clause 21.8.1 – Carer’s Leave;

•  Clause 21.9.4(b) – Sick/Personal Leave; and

•  Clause 21.11.1 – Domestic Violence Leave.

However, noting clause 6.1 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.

[6] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 7 December 2021. The nominal expiry date of the Agreement is 30 June 2022.

COMMISSIONER

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