AGC Industries Pty Ltd T/A AGC

[2024] FWCA 406

[2024] FWCA 406

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

AGC Industries Pty Ltd T/A AGC

(AG2023/5509)

AGC INDUSTRIES PTY LTD KWINANA FACILITY AGREEMENT 2023

Manufacturing and associated industries
COMMISSIONER LIM	PERTH, 31 JANUARY 2024

Application for approval of the AGC Industries Pty Ltd Kwinana Facility Agreement 2023

1. AGC Industries Pty Ltd (the Applicant) has made an application for the approval of an enterprise agreement known as the AGC Industries Pty Ltd Kwinana Facility Agreement 2023 (the Agreement). The application was made under s 185 of the Fair Work Act 2009 (Cth) (the Act).  The Agreement is a single enterprise agreement.

1. The application was accompanied by a signature page that did not comply in all respects with Regulation 2.06A of the Fair Work Regulations 2009 (Cth). An amended signature page was subsequently filed. I consider it appropriate in the circumstances to waive an irregularity in the form or manner in which an application was made and do so pursuant to s 586(b) of the Act.

1. The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) (the Amending Act) made several changes to enterprise agreement approval processes in Part 2-4 of the Act, which commenced operation on 6 June 2023.

1. 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 Act, as it was 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 the Agreement was 27 March 2023.

1. The Applicant 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.

1. In compliance with s 190(4) of the Act, the bargaining representative’s views regarding the undertakings proffered were sought. They were provided with the opportunity to raise and address any objections they had to the undertakings proffered by the Applicant. No objection was raised.

1. Subject to the undertakings referred to above, and on the basis of the material contained in the application and accompanying declarations, 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.

1. I note the following clauses of the Agreement:

• Clause 3(3)(c) provides that a regular casual employee who has worked equivalent full-time hours over the preceding period of 12 months' casual employment may request to have their employment converted to full-time employment. This appears to be inconsistent with s 66B of the Act.

• Clause 4.4(3) provides for majority agreement between employees and the employer to the substitution of public holidays whereas s 115(3) of the Act provides there must be agreement between an employee and employer.

• Clause 4.6 provides compassionate leave where a member of an employee’s immediate family or household contracts or develops a serious illness or sustains a serious injury or dies. However, it is silent in relation to compassionate leave for stillbirth/miscarriage as is provided by s 104(1)(b) and (c) of the Act.

• Clause 4.2(3) provides that should an employee have five (5) consecutive days of unauthorised absence from work, the employee will be deemed to have abandoned his/her employment. This appears to be inconsistent with the NES at s 117 of the Act

1. However, I am satisfied that under clause 1.5 of the Agreement, the more beneficial entitlements of the National Employment Standards (NES) will prevail where there is an inconsistency between the Agreement and the NES.

1. The Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union known as the Australian Manufacturing Workers’ Union (AMWU) 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), and based on the declaration provided by the organisation, I note that the organisation is covered by the Agreement.

1. The Agreement was approved on 31 January 2024 and, in accordance with s 54, will operate from 7 February 2024. The nominal expiry date of the Agreement is 31 January 2027.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

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ANNEXURE A