Aus Holdco Pty Ltd

[2022] FWCA 2348

[2022] FWCA 2348

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Aus Holdco Pty Ltd

(AG2022/2227)

Aus Holdco Pty Ltd-BLA Enterprise Agreement 2022

Storage services
COMMISSIONER PLATT	ADELAIDE, 14 JULY 2022

Application for approval of the Aus Holdco Pty Ltd–BLA Enterprise Agreement 2022

1. An application has been made for approval of an enterprise agreement known as the Aus Holdco Pty Ltd–BLA Enterprise Agreement 2022 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act) by Aus Holdco Pty Ltd (the Applicant). The agreement is a single enterprise agreement.

1. The matter was allocated to my Chambers on 7 July 2022.

1. On 8 July 2022, I conducted a telephone conference with the parties to seek clarification about aspects of the Agreement and invited the Applicant to address these matters including through the provision of an undertaking.

1. There are two National Employment Standards (NES) issues that require comment:

·   Clauses 2.3(i) and 2.5.4(d) of the Agreement state that employees are not entitled to notice of termination or redundancy when their employment has been terminated due to misconduct. This appears inconsistent with s.123 of the Act which provides that employees are not entitled to notice of termination and redundancy where the employee is terminated due to serious misconduct.

·   Clause 2.6.2 states that where an employee is deemed to have abandoned their employment, they are not entitled to notice of termination. This appears to be inconsistent with the notice requirements of s.117 of the Act.

1. Clause 1.4.3 of the Agreement acts as an effective NES precedence clause, in that it states that if the NES provides a greater benefit than the Agreement, the NES provision will apply to the extent it provides a greater benefit. As a result of the NES precedence clause, the above clauses will not apply to the extent that they are inconsistent with the NES.

1. The Applicant has submitted an undertaking in the required form dated 14 July 2022. The undertaking deals with the following topics:

·   The spread of ordinary work hours for all casual employees, part-time employees and level 1.1 and level 1.2 full-time employees will be 7.00am to 5.30pm Monday to Friday.

·   For all casual employees, part-time employees and level 1.1 and level 1.2 full-time employees, early morning shift means a shift commencing between 2.00am and 7.00am.

1. A copy of the undertaking has been provided to the bargaining representatives and I have sought their views in accordance with s.190(4) of the Act. The bargaining representatives did not express any view on the undertaking.

1. The undertaking appears to meet the requirements of s.190(3) of the Act and I have accepted it. As a result, the undertakings are taken to be a term of the Agreement.

1. I am satisfied that each of the requirements of ss.186, 187, 188 and 190 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 20 July 2025.

COMMISSIONER

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