AP Engineering Pty Ltd & AP Engineering Nominees Pty Ltd T/A AP Kempe Engineering
[2025] FWCA 401
•31 JANUARY 2025
| [2025] FWCA 401 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement
AP Engineering Pty Ltd & AP Engineering Nominees Pty Ltd T/A AP Kempe Engineering
(AG2024/5141)
AP KEMPE ENGINEERING ENTERPRISE AGREEMENT 2024
| Manufacturing and associated industries | |
| COMMISSIONER CONNOLLY | MELBOURNE, 31 JANUARY 2025 |
Application for approval of the AP Kempe Engineering Enterprise Agreement 2024
An application has been made for approval of an enterprise agreement known as the AP Kempe Engineering Enterprise Agreement 2024 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act) by AP Engineering Pty Ltd & AP Engineering Nominees Pty Ltd T/A AP Kempe Engineering (the Applicant). The Agreement is a single enterprise agreement.
The matter was allocated to my Chambers on 13 January 2025.
The notification time for the Agreement under s.173(2) was 21 August 2024 and the Agreement was made on 13 December 2024. Accordingly, the genuine agreement requirements the Agreement is to be assessed under are those applying after 6 June 2023 and the better off overall test (BOOT) is that applying on and from 6 June 2023. [1]
On 22 January 2025, the Employer was invited to address aspects of the Agreement.
There is one National Employment Standards (NES) issue that requires comment:
·Notice of Termination: The Agreement is silent on notice periods depending on an employee’s length of service
Clause 7 of the Agreement acts as an effective NES precedence clause, in that it states that “This Agreement shall be read and interpreted in conjunction with the National Employment Standards in the Act (“NES”) in that, where there is any inconsistency between the Agreement and the NES, the more beneficial provision to an employee shall take precedence.” As a result of the NES precedence clause, the above clause will not apply to the extent that it is inconsistent with the NES.
I am satisfied that each of the requirements of ss.186, 187, 188, 190, 193 and 193A of the Act as are relevant to this application for approval have been met.
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 7 February 2028.
COMMISSIONER
[1] The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) made a number of changes to enterprise agreement approval processes in Part 2-4 of the Fair Work Act. Those changes broadly commenced operation on 6 June 2023, subject to various transitional arrangements that included those to effect described above.
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