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austlii:cth/FWCA/2022/4540
appellant. The Agreement was approved and will operate from 28 December 2022 with a nominal expiry date of 28 December 2025.
The Fair Work Commission approved an enterprise agreement for a Mercedes-Benz dealership despite a technical error in the employee notification document. The employer had put the required notice on company letterhead, which wasn't strictly correct, but the Commission found this was only a minor error that didn't disadvantage employees. The employer also provided written promises (undertakings) to fix certain issues, which were accepted as part of the agreement. The agreement will run for three years from 28 December 2022.
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1 cited instrument linked from this judgment.
s.185 - Enterprise agreement
LSH Auto (Brisbane) Pty Ltd T/A Mercedes-Benz Brisbane
LSH AUTO (BRISBANE) PTY LTD, MERCEDES-BENZ BRISBANE ENTERPRISE AGREEMENT 2022-2025
Application for approval of the LSH Auto (Brisbane) Pty Ltd - Mercedes-Benz Brisbane Enterprise Agreement 2022-2025
[1] An application has been made for approval of an enterprise agreement to be known as the LSH Auto (Brisbane) Pty Ltd - Mercedes-Benz Brisbane Enterprise Agreement 2022-2025 (Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (Act). It has been made by LSH Auto (Brisbane) Pty Ltd T/A Mercedes-Benz Brisbane (Employer). The Agreement is a single enterprise agreement.
[2] There was an issue raised by the Commission with the Employer regarding the provision of the NERR on company letterhead.[1] Having regard to the submissions of the Employer provided on 20 December 2022, 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]
[3] The Employer has provided written undertakings dated 20 December 2022. 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 Vehicle Repair, Services and Retail Award 2020), and that the undertakings will not result in substantial changes to the Agreement.
[4] Subject to the undertakings referred to above, 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.
[5] 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 28 December 2022. The nominal expiry date of the Agreement is 28 December 2025.
[1] Noting the requirements of s.174(1A) of the Fair Work Act 2009.
[2] See s.188(2) of the Fair Work Act 2009 and the decision of the Full Bench of the Commission in Huntsman Chemical Co Australia Pty Ltd T/A RMAX Rigid Cellular Plastics & Others [2019] FWCFB 318.
Printed by authority of the Commonwealth Government Printer
The Agreement was approved and will operate from 28 December 2022 with a nominal expiry date of 28 December 2025.