Applus Pty Ltd Summary

[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

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.

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

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]

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

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.

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.

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.

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 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

The case involves Applus Pty Ltd, an employer, and the National Union of Workers, the union representing the employees. The dispute arose over the proposed Victorian Non-Destructive Testing (NDT) Agreement 2023-2026, which Applus sought to implement. The matter was heard in the Fair Work Commission, the tribunal responsible for regulating industrial relations in Australia.

The central legal issues before the Commission were whether the proposed agreement complied with the Fair Work Act 2009, and if it appropriately balanced the rights and interests of both the employer and employees. The Commission had to determine if the agreement adhered to the requirements of a "modern award" and whether it met the standards of "best practice" industrial relations, as mandated by the legislation.

The Commission found that the agreement did indeed comply with the Fair Work Act. It appropriately reflected the terms and conditions agreed upon by both parties, ensuring that the rights and interests of employees were protected while allowing flexibility for the employer. The Commission noted the agreement's provisions on wages, hours of work, leave, and other employment conditions were reasonable and consistent with the principles of fairness and equity. Consequently, the Commission approved the agreement, acknowledging its alignment with contemporary industrial relations standards.

As a result of the Commission's decision, the Applus Pty Ltd Victorian NDT Agreement 2023-2026 was formally approved and can now be implemented. This approval ensures that the agreement will govern the employment terms between Applus and its employees for the specified period.

Applus Pty Ltd

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