Amadeus IT Pacific Pty Ltd
[2024] FWCA 1304
•11 APRIL 2024
| [2024] FWCA 1304 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.185—Enterprise agreement
Amadeus IT Pacific Pty Ltd
(AG2024/640)
AMADEUS IT PACIFIC PTY LTD ENTERRISE AGREEMENT 2024
| Computer system design and professional service industry | |
| DEPUTY PRESIDENT SLEVIN | SYDNEY, 11 APRIL 2024 |
Application for approval of the Amadeus IT Pacific Pty Ltd Staff Enterprise Agreement 2024
An application has been made for approval of an enterprise agreement known as the Amadeus IT Pacific Pty Ltd Staff Enterprise Agreement 2024 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act) by Amadeus IT Pacific Pty Ltd. The Agreement is a single enterprise agreement.
The Commission must approve the Agreement if satisfied that the requirements in ss. 186 and 187 are met. Relevant to the requirement for approval in s. 186(2)(c) that the terms of the Agreement do not exclude an entitlement under the National Employment Standards (NES), clauses 18.1-18.2 of the Agreement provide for annual leave in days rather than weeks and so are inconsistent with the National Employment Standards (NES). The applicant addressed this matter by providing an undertaking that where there is an inconsistency between the Agreement and the NES, and the NES entitlement is more beneficial to employees, the NES shall apply. The undertaking also provides a definition of shiftworker for the purposes of the NES. A copy of the undertakings is attached in Annexure A.
Five matters were raised with the applicant going to whether the Agreement passes the better off overall test (BOOT), referred to in s.186(2)(d). Undertakings were provided to address those matters.
I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement and it will not result in substantial changes to the Agreement. Pursuant to s.201(3), the undertaking is taken to be a term of the Agreement.
The Agreement does not cover all of the employees of the employer, however, taking into account the factors in sections 186(3) and (3A) I am satisfied that the group of employees was fairly chosen.
Taking into account the undertakings, I am satisfied that the requirements in ss.186, 187, 188 and 190 as are relevant to this application for approval have been met.
Clause 5 deals with individual flexibility agreements. It does not require that an agreement meet the genuine needs of the employer and employee or that the arrangement be genuinely agreed to as required by ss.202(1) and 203(3), rather it provides agreements be “entered into with the genuine consent of the employee”. Moreover, the clause does not state that the flexibility arrangement will be for permitted matters in accordance with s.203(2)(a)(i). Consequently the clause does not meet the description of individual flexibility term in s. 202(1) and pursuant to s.202(4) of the Act, the model consultation term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.
Clause 6 of the Agreement deals with consultation but does not require the employer to invite the views of the employees in relation to a proposed change to the regular roster or ordinary hours of work. Consequently, the clause does not meet the requirement for consultation terms in s. 205(1A). Pursuant to s.205(2) of the Act, the model flexibility term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.
The Agreement is approved on 11 April 2024 and, in accordance with s.54, will operate from 18 April 2024. The nominal expiry date of the Agreement at clause 3(d) is 18 April 2028.
DEPUTY PRESIDENT
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ANNEXURE A
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