Austube Mills Pty Ltd

[2024] FWCA 1073

[2024] FWCA 1073

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Austube Mills Pty Ltd

(AG2024/356)

AUSTUBE MILLS NEWCASTLE ENTERPRISE AGREEMENT 2023-2026

Manufacturing and associated industries
DEPUTY PRESIDENT GRAYSON	SYDNEY, 26 MARCH 2024

Application for approval of the Austube Mills Newcastle Enterprise Agreement 2023-2026

Introduction

1. Austube Mills Pty Ltd has made an application for approval of an enterprise agreement known as the Austube Mills Newcastle Enterprise Agreement 2023-2026 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement.

Transitional arrangements under the Secure Jobs, Better Pay amendment

1. The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) (Amending Act) made a number of changes to enterprise agreement approval processes in Part 2-4 of the Act, that commenced operation on 6 June 2023. By reason of the transitional arrangements for the Amending Act and the notification time for the Agreement of 2 May 2023, the genuine agreement requirements for agreement approval in Part 2-4 of the Act, as it was just before 6 June 2023, apply to the present application. Further, as the Agreement was made on 2 February 2024 the better off overall test requirements in Part 2-4 of the Act as amended on 6 June 2023 apply.

National Employment Standards precedence term in Clause 5 (IV) of the Agreement

1. Clause 9 (VII) of the Agreement provides that the employer is able to dismiss an employee from their employment without notice for “malingering” and “inefficiency”. This clause’s effect appears to go beyond s.123 of the Act, which provides limits to the scope of employees whose circumstances do not entitle them to the coverage of notice of termination provisions of the Act, and reg.107(3) of the Fair Work Regulations 2009, which defines the conduct considered to be ‘serious misconduct’ in employment.

1. Clause 23 (B) (XIV) of the Agreement states that if it is not reasonably practicable for an employee to give prior notice of absence due to circumstances beyond the employee’s control, the employee shall notify the Company by telephone of such absence at the first opportunity on the day of absence. The effect of this clause may not be consistent with s.107(2)(a) of the Act, which provides that notice of personal or carer’s leave may be given after leave has started and does not preclude this being after the “first opportunity” on the day of absence.

1. Cl 23 (B) of the Agreement is silent as to an employee’s entitlement to take leave for the permissible occasion of miscarriage or stillbirth, which is not consistent with s.104 of the Act.

1. These clauses may be inconsistent with the National Employment Standards (NES). I note that in accordance with the NES precedence term in Clause 5 (IV) of the Agreement, these clauses will be read and interpreted in conjunction with the NES.

Section 190 Undertakings

1. The employer 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.

Section 186, 187, 188 and 190

1. 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.

Section 183 Bargaining Representatives

1. The “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU), Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) and the Australian Workers’ Union (AWU), being bargaining representatives for the Agreement, have given notice under s.183 of the Act that they want the Agreement to cover them.

1. In accordance with s.201(2), I note that the Agreement covers the AMWU, the CEPU, and the AWU.

Approval

1. The Agreement is approved and, in accordance with s.54 of the Act, will operate from 2 April 2024. The nominal expiry date of the Agreement is 31 August 2026.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<AE523960  PR772747>

APPENDIX A