Wired Overhead Solutions Pty Ltd T/A Wired Overhead Solutions Pty Ltd
[2023] FWCA 2663
•22 AUGUST 2023
| [2023] FWCA 2663 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.185—Enterprise agreement
Wired Overhead Solutions Pty Ltd T/A Wired Overhead Solutions Pty Ltd
(AG2023/2607)
WIRED OVERHEAD SOLUTIONS PTY LTD ENTERPRISE AGREEMENT 2023 - 2027
| Rail industry | |
| DEPUTY PRESIDENT BOYCE | SYDNEY, 22 AUGUST 2023 |
Application for approval of the WIRED Overhead Solutions Pty Ltd Enterprise Agreement 2023 - 2027
An application has been made for approval of an enterprise agreement to be known as the WIRED Overhead Solutions Pty Ltd Enterprise Agreement 2023 – 2027 (Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (Act). It has been made by Wired Overhead Solutions Pty Ltd (Employer). The Agreement is a single enterprise agreement.
Undertakings
The Employer has provided written undertakings dated 17 August 2023. Those undertakings are attached at Annexure A to this decision and become terms of the Agreement. I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement (as compared to the relevant provisions of the Rail Industry Award 2020), and that the undertakings will not result in substantial changes to the Agreement.
Compliance issue under s.180(3)
There was an issue raised by the Commission with the Employer regarding compliance with s.180(3) of the Act. Having regard to the submissions and evidence of the Employer provided on 17 August 2023, I find this issue to be a minor procedural and/or technical error.[1] I am satisfied that the Agreement was genuinely agreed to by relevant employees notwithstanding the error.[2] I am also satisfied that the employees covered by the Agreement are not likely to have been disadvantaged by the error.[3]
Model consultation clause
Pursuant to s.205(2) of the Act, the model consultation term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.
Conclusion
Subject to the undertakings referred to above, I am satisfied that each of the requirements of ss.186, 187, 188, 190, 193 and 193A of the Act, as are relevant to this application for approval, have been met.[4]
I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.
The Agreement is approved and, in accordance with s.54 of the Act, will operate from 29 August 2023. The nominal expiry date of the Agreement is 22 August 2027.
DEPUTY PRESIDENT
<AE521214 PR765419>
[1] See s.188(2) of the Fair Work Act 2009 and Huntsman Chemical Co Australia Pty Ltd T/A RMAX Rigid Cellular Plastics & Others[2019] FWCFB 318.
[2] Ibid.
[3] Ibid.
[4] The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Amending Act) made a number of changes to enterprise agreement approval processes in Part 2-4 of the Fair Work Act 2009 (FW Act), that commenced operation on 6 June 2023. Under transitional arrangements, amendments made by Part 14 of Schedule 1 to the Amending Act in relation to genuine agreement requirements for agreement approval applications apply where the notification time for the agreement was on or after 6 June 2023. The genuine agreement provisions in Part 2-4 of the FW Act, as it was just before 6 June 2023, continue to apply in relation to agreement approval applications where the notification time for the agreement was before 6 June 2023. The notification time for this Agreement was before 6 June 2023. Under transitional arrangements, amendments made by Part 16 of Schedule 1 to the Amending Act in relation to the better off overall test requirements for agreement approval applications apply where the agreement was made on or after 6 June 2023. This Agreement was made after 6 June 2023.
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