Australian Wool Testing Authority Limited

[2020] FWCA 484

[2020] FWCA 484

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Australian Wool Testing Authority Limited
(AG2019/5003)

AUSTRALIAN WOOL TESTING AUTHORITY LTD - UNITED WORKERS UNION COLLECTIVE AGREEMENT 2019

Wool storage, sampling and testing industry
COMMISSIONER LEE	MELBOURNE, 31 JANUARY 2020

Application for approval of the Australian Wool Testing Authority Ltd - United Workers Union Collective Agreement 2019.

[1] An application has been made for approval of an enterprise agreement known as the Australian Wool Testing Authority Ltd - United Workers Union Collective Agreement 2019 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Australian Wool Testing Authority Limited. The Agreement is a single enterprise agreement.

[2] The Employer has provided written undertakings. A copy of the undertakings is attached in Annexure A. I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement and that the undertakings will not result in substantial changes to the Agreement. The undertakings are taken to be a term of the agreement.

[3] Subject to the undertakings referred to above, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 as are relevant to this application for approval have been met.

[4] Clause 45.1 of the Agreement provides that an employer may deduct from an employee’s termination pay an appropriate amount if an employee ceases employment for any reason within a period of three months after receiving sub subsidy. In my view, this clause may not be a permitted deduction within the meaning of s.324 of the Act, and pursuant to s.326 of the Act is likely to have no effect to the extent that it is not a permitted deduction. However, notwithstanding my views on that, it is not a matter to which I am to have regard in terms of whether or not the Agreement should be approved and does not represent a barrier to the approval of the Agreement.

[5] Pursuant to s.202(4) of the Act, the model flexibility term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.

[6] The United 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.

[7] I observe that the following provisions are likely to be inconsistent with the National Employment Standards (NES):

•  Clause 18.1 – Notice of Termination by Employer

•  Clause 18.6 - Abandonment of Employment

•  Clause 28.1 – Annual Leave

•  Clause 29.1.3 – Personal Leave

•  Clause 32.1.1 – Definitions

•  Clause 32.2.2 – Basic entitlement

•  Clause 37 – Jury Service

However, noting clause 8.3.2 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.

[8] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 7 February 2020. The nominal expiry date of the Agreement is 30 April 2022.

COMMISSIONER

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Annexure A