A and L Concrete Pumping Pty Ltd T/A Citywest Concrete Pumping
[2023] FWCA 1317
•12 MAY 2023
| [2023] FWCA 1317 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.185—Enterprise agreement
A and L Concrete Pumping Pty Ltd T/A Citywest Concrete Pumping
(AG2023/1129)
CITYWEST CONCRETE PUMPING ENTERPRISE AGREEMENT 2023
| Building, metal and civil construction industries | |
| DEPUTY PRESIDENT MILLHOUSE | MELBOURNE, 12 MAY 2023 |
Application for approval of the Citywest Concrete Pumping Enterprise Agreement 2023
An application has been made for approval of an enterprise agreement known as the Citywest Concrete Pumping Enterprise Agreement 2023 (Agreement). The application was made pursuant to s 185 of the Fair Work Act 2009 (Cth) (Act). It has been made by A and L Concrete Pumping Pty Ltd T/A Citywest Concrete Pumping (Employer). The Agreement is a single-enterprise agreement.
The Employer has provided written undertakings. A copy of the undertakings is attached in Annexure A. I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement and that the undertakings will not result in substantial changes to the Agreement. The undertakings are taken to be a term of the Agreement.
Subject to the undertakings referred to above, 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.
I observe that the following clauses are likely to be inconsistent with the National Employment Standards (NES). However, noting clause 4.3 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:
· Clause 21.9 provides that on termination the employee must return all employer property prior to receiving any final payments. The entitlement to payments arising under the NES on termination is not subject to such a limitation. This raises the issue that clause 21.9 may be inconsistent with Chapter 2 Part 2.2 Division 2 of the Act.
· Clause 21.10 sets out circumstances where an employee is deemed to have abandoned their employment but does not specify that an employee is entitled to payment of notice of termination in accordance with ss 117–123 of the Act.[1]
The Agreement is approved and, in accordance with s 54 of the Act, will operate from 19 May 2023. The nominal expiry date of the Agreement is 12 May 2027.
DEPUTY PRESIDENT
Annexure A
[1] Bienias v Iplex Pipelines Australia Pty Limited[2017] FWCFB 38 at [58]
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