Austral Masonry (NSW) Pty Ltd

[2021] FWCA 6638

[2021] FWCA 6638

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Austral Masonry (NSW) Pty Ltd
(AG2021/8001)

AUSTRAL MASONRY OAKDALE ENTERPRISE AGREEMENT 2021

Manufacturing and associated industries
COMMISSIONER MATHESON	SYDNEY, 10 NOVEMBER 2021

Application for approval of the Austral Masonry Oakdale Enterprise Agreement 2021.

[1] An application has been made for approval of an enterprise agreement known as the Austral Masonry Oakdale Enterprise Agreement 2021 (Agreement). The application was made by Austral Masonry (NSW) Pty Ltd (Applicant) pursuant to s.185 of the Fair Work Act 2009 (Cth) (Act). The Agreement is a single enterprise agreement. The Applicant is the employer covered by the Agreement.

[2] A number of matters were identified, and responses and undertakings sought from the Applicant. The Applicant provided responses and an undertaking on 5 November 2021.

[3] Within its responses, the Applicant provided further documentation indicating that, of the 15 employees who cast a valid vote, 14 employees voted to approve the Agreement. Having considered the further explanation and materials provided by the Applicant, I am satisfied that there was an error made in the Application and pursuant to s.586(a) of the Act I allow a correction to the Form F17 to reflect that 14 employees voted to approve the Enterprise Agreement.

[4] Pursuant to section 190(4) of the Act, I must not accept an undertaking unless I have sought the views of each person I know is a bargaining representative for the Agreement. The views of the four bargaining representatives were sought regarding the undertakings. On 7 November 2021, one of the bargaining representatives confirmed that he supported the undertakings and did not wish to raise any further views or submissions in relation to the undertakings. A follow up email was sent to the other bargaining representatives on 9 November 2021 advising that if views were not provided the application would be determined based on the materials before the Commission. The bargaining representatives did not raise any views or objections in relation to the undertakings and did not raise any other matters of concern.

[5] I observe that clause 30(a) of the Agreement relating to personal/carer’s leave and Schedule A of the Agreement relating to redundancy pay may be inconsistent with the National Employment Standards (NES). However, noting the NES precedence undertaking provided in relation to 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.

[6] A copy of the undertakings is attached at Annexure A of this decision (Undertakings). I am satisfied that the effect of accepting the Undertakings is not likely to:

(a) cause financial detriment to any employee covered by the Agreement; or

(b) result in substantial changes to the Agreement.

[7] Pursuant to s.190(3) of the Act, I accept the Undertakings.

[8] Subject to the Undertakings, and on the basis of the materials before the Commission, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 of the Act as are relevant to the application for approval of the Agreement have been met.

[9] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 17 November 2021. The nominal expiry date of the Agreement is three years from the date of approval.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

<AE513834 PR735679>

Annexure A