Applus Pty Ltd

[2023] FWCA 2762

[2023] FWCA 2762

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185 - Application for approval of a single-enterprise agreement

Applus Pty Ltd

(AG2023/2813)

APPLUS PTY LTD VICTORIAN NDT AGREEMENT 2023 - 2026

Oil and gas industry
COMMISSIONER CONNOLLY	MELBOURNE, 29 AUGUST 2023

Application for approval of the Applus Pty Ltd Victorian NDT Agreement 2023 - 2026

1. An application has been made for approval of an enterprise agreement known as the Applus Pty Ltd Victorian NDT Agreement 2023 – 2026 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act) by Applus Pty Ltd (the Applicant). The Agreement is a single enterprise agreement.

1. The matter was allocated to my Chambers on 23 August 2023.

1. The notification time for the Agreement under s.173(2) was 24 August 2022 and the Agreement was made on 10 August 2023.  Accordingly, the genuine agreement requirements the Agreement is to be assessed under are those applying before 6 June 2023 and the better off overall test (BOOT) is that applying on and from 6 June 2023. [1] 

1. On 25 August 2023, the Employer was invited to address aspects of the Agreement.

1. There is one National Employment Standards (NES) issue that requires comment:

·   Annual Leave: Clause 19.1(f) of the Agreement states annual leave loading will not be paid upon termination where the termination is due to summary dismissal. This appears contrary to s.90(2) of the Act, which provides that any period of unpaid annual leave must be payable to the employee had they taken that leave.

1. Clause 6 (k) of the Agreement acts as an effective NES precedence clause, in that it states that ‘where there is inconsistency between the Agreement and the NES, and the NES provides greater benefit, the NES provisions will apply to the extent of the inconsistency’. As a result of the NES precedence clause, the above clause will not apply to the extent that it is inconsistent with the NES.

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

1. 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.

1. 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 30 June 2026.

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.

Printed by authority of the Commonwealth Government Printer

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