Wormald Australia Pty Ltd T/A Wormald
[2023] FWC 1435
•19 JUNE 2023
| [2023] FWC 1435 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.185—Enterprise agreement
Wormald Australia Pty Ltd T/A Wormald
(AG2023/1688)
WORMALD TOOWOOMBA FIRE ALARM ENTERPRISE AGREEMENT - 2022 - 2026
| Electrical contracting industry | |
| DEPUTY PRESIDENT BOYCE | SYDNEY, 19 JUNE 2023 |
Application for approval of the Wormald Toowoomba Fire Alarm Enterprise Agreement - 2022 - 2026
An application has been made for approval of an enterprise agreement to be known as the Wormald Toowoomba Fire Alarm Enterprise Agreement - 2022 - 2026 (Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (Act). It has been made by Wormald Australia Pty Ltd (Employer). The Agreement is a single enterprise agreement.
Application brought out of time
The Agreement was lodged with the Commission on 1 June 2023. Section 185(3) of the Act provides that an enterprise agreement must be lodged with the Commission for approval within 14 days of it being made (i.e. approved by relevant employees), or within such time as the Commission allows if it considers it fair to extend the time period for lodgement. Given the Agreement was made on 7 November 2022, it ought to have been lodged by 21 November 2022. The Employer has lodged a statutory declaration that detail the circumstances as to why the Agreement was lodged outside of the 14 day period. In summary, the Employer tried to lodge the application on 10 November 2022 but the attachments were too large, and the email did not send. The Employer notes that they did not receive any bounce back email. The Employer contacted the Commission on 5 May 2023 to enquire as to the status of its enterprise agreement approval application. After investigation it was found that the documents were lost during the process from the Employer to the Commission. In the circumstances of this case, and having regard to the circumstances outlined by the Employer, I do consider it fair to extend the period in which this Application (for approval of an enterprise agreement) is lodged with the Commission to 1 June 2023.
Notice of Employee Representational Rights
There was an issue raised by the Commission with the Employer regarding the provision of the Notice of Employee Representational Rights (NERR) to relevant employees 26 days (as opposed to within 14 days) after notification time.[1] Having regard to the submissions of the Employer provided on 16 June 2023, I find that this issue constitutes a minor procedural and/or technical error. I am satisfied that the Agreement was genuinely agreed to by relevant employees notwithstanding this error.[2] I am also satisfied that the employees covered by the Agreement were not likely to have been disadvantaged by the error.[3]
Model consultation and flexibility clauses
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.
Pursuant to s.202(4) of the Act, the model flexibility term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.
Conclusion
I am satisfied that each of the requirements of ss.186, 187, 188 and 190 of the Act, as are relevant to this application for approval, have been met.
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 26 June 2023. The nominal expiry date of the Agreement is 1 July 2026.
DEPUTY PRESIDENT
[1] Noting the requirements of s.173 of the Fair Work Act 2009.
[2] 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.
[3] Ibid.
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