Anca Pty Ltd T/A Anca Pty Ltd

[2024] FWCA 3625

[2024] FWCA 3625

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Anca Pty Ltd T/A Anca Pty Ltd

(AG2024/3759)

Manufacturing and associated industries
COMMISSIONER REDFORD	MELBOURNE, 22 OCTOBER 2024

Application for approval of the ANCA Pty Ltd Enterprise Bargaining Agreement 2024

1. An application has been made for approval of an enterprise agreement known as the ANCA Pty Ltd Enterprise Bargaining Agreement 2024 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Anca Pty Ltd T/A Anca Pty Ltd (the employer). The Agreement is a single enterprise agreement.

2. 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.

3. 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.

4. Clause 6(c) of the Agreement provides that to the extent the Agreement is less favourable than the National Employment Standards (NES), the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES (the NES precedence clause). This appears to resolve the following matters: 

(a)Clause 26(g) of the Agreement provides that if an employee fails to give the required notice of termination, the Company may, to the extent permitted by law, withhold any monies due to the Employee on termination under the Agreement or the NES of an amount not exceeding the amount the Employee would be been paid under the Agreement in respect of the notice period required, less any period of notice actually given by the employee. To the extent that this clause might purport to allow for employee entitlements payable under the NES to be withheld (such as, for example, accrued but unused annual leave or long service leave on  termination), it may be inconsistent with the NES, which inconsistency would be resolved by the NES precedence clause.

(b)Clause 45(b) of the Agreement provides for compassionate leave, however it is silent in relation to the entitlement in circumstances when an employee, their spouse, or de facto partner has a miscarriage or gives birth to a stillborn child. Section 104(1)(c) of the Act provides for compassionate leave in these circumstances. On the basis of the NES precedence clause, the superior entitlement provided for in the NES will apply.

(c)Clause 50 of the agreement which deals with public holidays, does not expressly provide for an entitlement for employees to be absent from work on a public holiday, within the meaning of s 114(1) of the Act. On the basis of the NES precedence clause, the superior entitlement provided for in the NES will apply.

1. The Australian Manufacturing Workers Union, 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) I note that the Agreement covers the AMWU.

2. The Agreement is approved and, in accordance with s.54 of the Act, will operate from 29 October 2024.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

<AE526419  PR780358>

Annexure A