AGL Energy Limited

[2023] FWCA 2421

[2023] FWCA 2421

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185 - Application for approval of a single-enterprise agreement

AGL Energy Limited

(AG2023/2456)

AGL ENERGY LIMITED SOUTH AUSTRALIA ENTERPRISE AGREEMENT 2023

Electrical power industry
COMMISSIONER PLATT	ADELAIDE, 4 AUGUST 2023

Application for approval of the AGL Energy Limited South Australia Enterprise Agreement 2023

1. An application has been made for approval of an enterprise agreement known as the AGL Energy Limited South Australia Enterprise Agreement 2023 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act) by AGL Energy Limited (the Applicant). The agreement is a single enterprise agreement.

1. The matter was allocated to my Chambers on 28 July 2023.

1. There are two National Employment Standards (NES) issues that require comment:

·  Clause 19.3 of the Agreement states that in normal circumstances, you shall not take personal/ carer's leave where another person has taken leave to provide care for the same person. This does not appear to be contained in the NES.

·  Clause 27 states that where an Employee is absent from work for a continuous period of 3 working days without notifying the Company or obtaining prior consent to such absence, this will constitute abandonment of employment. This appears to be inconsistent with the NES at s.117 of the Act.

1. Clause 30 of the Agreement acts as an effective NES precedence clause. As a result of the NES precedence clause, the above clauses will not apply to the extent they are inconsistent with the NES.

1. The Applicant has submitted an undertaking in the required form dated 2 August 2023. The undertaking deals with the following topics:

·  For the purpose of the additional week of annual leave provided for in the NES, a shiftworker is an employee who:

(a)works a roster and who, over the roster cycle, may be rostered to work ordinary time shifts on any of the 7 days of the week; and

(b)     is regularly rostered to work on Sundays and public holidays.

·  Despite clause 12.3, any accrued but untaken TOIL will to paid out upon termination at the applicable overtime rate.

1. A copy of the undertaking has been provided to the bargaining representatives and I have sought their views in accordance with s.190(4) of the Act. The bargaining representatives did not express any view on the undertaking.

1. The undertaking appears to meet the requirements of s.190(3) of the Act and I have accepted it. As a result, the undertakings are taken to be a term of the Agreement.

1. The Australian Municipal, Administrative, Clerical and Services Union, 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) of the Act I note that the Agreement covers this organisation.

1. 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. The Agreement is approved and, in accordance with s.54 of the Act, will operate from 7 days after the date of approval of the Agreement. The nominal expiry date is 10 August 2026.

COMMISSIONER

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