Apex Labour Hire Services Pty Ltd

[2023] FWCA 2481

[2023] FWCA 2481

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Apex Labour Hire Services Pty Ltd

(AG2023/2495)

AMWU AND APEX LABOUR HIRE SERVICES PTY LTD METALS LABOUR HIRE AGREEMENT 2023-2026

Manufacturing and associated industries
DEPUTY PRESIDENT MILLHOUSE	MELBOURNE, 9 AUGUST 2023

Application for approval of the AMWU and Apex Labour Hire Services Pty Ltd Metals Labour Hire Agreement 2023-2026

1. An application has been made for approval of an enterprise agreement known as the AMWU and Apex Labour Hire Services Pty Ltd Metals Labour Hire Agreement 2023-2026 (Agreement). The application was made pursuant to s 185 of the Fair Work Act 2009 (Cth) (Act). It has been made by Apex Labour Hire Services Pty Ltd (Employer). The Agreement is a single-enterprise agreement.

1. The notification time for the Agreement precedes 6 June 2023. Accordingly, the legislative changes to the Act in relation to the genuine agreement provisions which commenced on 6 June 2023 do not apply to this approval application.[1] However, the Agreement was made after 6 June 2023. Accordingly, the amendments to the better off overall test have commenced and so apply to this approval application.[2]

1. The coverage in the Notice of Employee Representational Rights (NERR) is listed as “employed by Apex Labour Hire under the classifications pursuant to clause 12 and who are on hired to clients and work under client’s direction under the terms and conditions of the proposed enterprise agreement.” The proposed enterprise agreement was not provided to employees until 5 July 2023.[3] Accordingly, it is unclear whether employees were aware that they were to be covered at the time of receiving the NERR. However, on the basis of the written submissions made by the Employer,[4] I am satisfied that:

(a)   this constitutes a minor procedural or technical error; and

(b)   employees covered by the Agreement were not likely to have been disadvantaged by the error.[5]

1. I am satisfied that each of the requirements of ss 186, 187 and 188 as are relevant to this application for approval have been met. For the purposes of the better off overall test, I note that I have had regard to each of the matters in s 193A(2)-(6), and I observe no views were expressed for the purposes of s 193A(6A).

1. Pursuant to s 205(2) of the Act, the model consultation term prescribed by the Fair Work Regulations 2009 (Cth) is taken to be a term of the Agreement.

1. Clause 39 of the Agreement provides the parties shall endeavour to reach agreement on the day or days that will be deemed to be additional public holiday(s). This appears to be inconsistent with s 115(3) of the Act which provides that the substitution of a public holiday with another day may only occur by agreement between the employer and an individual employee, rather than a majority of employees. Accordingly, clause 39 appears to be inconsistent with the National Employment Standards (NES). However, having regard to clause 6.7 of the Agreement, I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

1. The “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ 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) I note that the Agreement covers the organisation.

1. The Agreement is approved and, in accordance with s 54 of the Act, will operate from 16 August 2023. The nominal expiry date of the Agreement is 30 June 2026.

DEPUTY PRESIDENT

[1] The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Amending Act) commenced operation with respect to the genuine agreement provisions and the better off overall test provisions of the Act on 6 June 2023. However, in relation to the genuine agreement provisions, Division 11 of Part 26 of the Amending Act provides that Part 2-4 of the Act continues to apply, as if the amendments had not been made, in relation to any proposed enterprise agreement for which the notification time occurs before 6 June 2023.

[2] Division 12 of Part 26 of the Amending Act provides that the amendments to the better off overall test apply in relation to enterprise agreements made on and after 6 June 2023

[3] Form F17 dated 25 July 2023 at p.14

[4] Email from the Employer to the Commission dated 3 August 2023

[5] Huntsman Chemical Company Australia Pty Limited T/A RMAX Rigid Cellular Plastics & Others[2019] FWCFB 318

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