AKN Pty Ltd T/A Boom Logistics

[2025] FWCA 720

[2025] FWCA 720

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s 185—Enterprise agreement

AKN Pty Ltd T/A Boom Logistics

(AG2025/129)

AKN PTY LTD NATIONAL EMPLOYEE SERVICES AGREEMENT 2024

Building, metal and civil construction industries
COMMISSIONER LIM	PERTH, 24 FEBRUARY 2025

Application for approval of the AKN Pty Ltd National Employee Services Agreement 2024.

1. AKN Pty Ltd Trading As Boom Logistics (the Applicant) has made an application for the approval of an enterprise agreement known as the AKN Pty Ltd National Employee Services Agreement 2024 (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. On the basis of the material contained in the application, accompanying declarations and additional evidence filed by the Applicant’s General Manager, I am satisfied that each of the requirements of ss 186, 187 and 188 of the Act as are relevant to this application for approval have been met.

1. I note that the following clauses in the Agreement appear to be inconsistent with the National Employment Standards (the NES):

(a)Clause 31 sets out circumstances where an employee is deemed to have abandoned their employment but does not appear to specify that an employee is entitled to payment in lieu of notice of termination in accordance with ss 117-123 of the Act;

(b)Clause 30.7 provides that if the employee fails to give the required notice of termination to the employer, the employer has the right to withhold from an employee’s termination pay an amount that is equal to the period of notice not given. Clause 30.7 does not appear to limit the source of monies which may be deducted. The effect of this is that it appears to permit the employer to withhold monies owing to the employee under the NES, such as accrued but unused annual leave or long service leave on termination.

(c)Clause 38.1 deals with Public Holidays; Clause 39.1(a) deals with Jury Service; and Clause 40.1 deals with Inclement Weather. These clauses contain terms that provide for an employee to be paid at the rate of 7.6 hours per day; however, the Schedules of the Agreement indicate that hours of work may be worked up to 12 hours per day. This may be inconsistent with various provisions of the NES in relation to payment to be made for ordinary hours.

1. However, I am satisfied that under clause 5.1 of the Agreement, the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

1. The Agreement was approved on 24 February 2025 and, in accordance with s 54, will operate from 3 March 2025. The nominal expiry date of the Agreement is 24 February 2029.

COMMISSIONER

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