Austube Mills Pty Ltd

[2019] FWCA 5835

[2019] FWCA 5835

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement

Austube Mills Pty Ltd
(AG2019/2532)

AUSTUBE MILLS NEWCASTLE ENTERPRISE AGREEMENT 2018-2020

Manufacturing and associated industries
DEPUTY PRESIDENT BULL	SYDNEY, 21 AUGUST 2019

Application for approval of the Austube Mills Newcastle Enterprise Agreement 2018-2020.

[1] An application (Form F16) has been filed by Austube Mills Pty Ltd(the applicant) for the approval of an enterprise agreement known as the Austube Mills Newcastle Enterprise Agreement 2018-2020 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single-enterprise agreement as per s.172(2) of the Act.

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

[3] The Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (AMWU), the Communications Electrical Electric 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 each given notice under s.183 of the Act that they want the Agreement to cover them. In accordance with s.201(2) of the Act, I note that the Agreement covers each of the organisations.

[4] I note clause 5(iv) of the Agreement which states the NES will prevail where there is an inconsistency between the Agreement and the NES.

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

•  Clause 18 – Requirement to work in accordance with the needs of the industry – The employer may require an employee to work on holidays, and unless a reasonable excuse exists, the employee shall work in accordance with such a requirement. This may be broader than s.114 of the Act provides.

•  Clause 23A – Personal/Carers Leave – The personal leave entitlement is provided in days and hours; clause 23A(XV) provides that shift workers will have 12 hours deducted from entitlement per shift absent. It appears that, in practice, 12-hour shift workers may not receive ten days personal leave as provided by s.96 of the Act.

•  Clause 23B – Compassionate Leave - Excludes casuals from compassionate leave entitlement; the clause only provides paid leave. Section 104 of the Act does not appear to exclude casual employees.

•  Clause 25(IX)(b) – annual leave loading does not apply to proportionate leave on termination. Section 90 of the Act provides that if an employee’s employment ends with accrued annual leave untaken, the employer must pay the employee the amount they would have received had they taken that leave.

•  Clause 25(XI) – Annual Leave Loading - A shiftworker on a 12-hour shift system may be required to work normal rostered shifts on a public holiday. Section 114 of the Act provides that employees are entitled to absence on public holidays.

•  Clause 26(II) – Jury Service - Employees on jury service who are not empanelled and dismissed for the rest of the day must report for work. This may not be consistent with s.108 of the Act.

•  Clause 31(VI) – Volunteer Services – Emergency Services Personnel - In each genuine emergency situation, providing where reasonable and practicable proper consultation has taken place, volunteer emergency services employees will be released to attend. This may be more restrictive than the notice for community service leave set out in s.110 of the Act.

•  Clause 42(I)(b) – Cancellation, Suspension or Termination of Apprenticeship - Apprentices are excluded from termination provisions. Section 123 of the Act does not appear to exclude apprentices from notice of termination.

[6] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 7 days from the date of approval. The nominal expiry date of the Agreement is 31 August 2020.

DEPUTY PRESIDENT

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