Austube Mills Pty Ltd T/A Austube Mills
[2024] FWCA 4429
•11 DECEMBER 2024
| [2024] FWCA 4429 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.185—Enterprise agreement
Austube Mills Pty Ltd T/A Austube Mills
(AG2024/4480)
AUSTUBE MILLS ACACIA RIDGE ENTERPRISE AGREEMENT 2024-2026
| Manufacturing and associated industries | |
| COMMISSIONER SLOAN | SYDNEY, 11 DECEMBER 2024 |
Application for approval of the Austube Mills Acacia Ridge Enterprise Agreement 2024 - 2026
Austube Mills Pty Limited (“Employer”) has made an application for approval of an enterprise agreement known as the Austube Mills Acacia Ridge Enterprise Agreement 2024-2026 (“Agreement”). The application is made under s 185 of the Fair Work Act 2009 (“Act”). The Agreement is a single enterprise agreement.
The “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union”, known as the Australian Manufacturing Workers’ Union (“AMWU”) was a bargaining representative for the Agreement. It supports the approval of the Agreement.
I wish to raise four matters arising from the terms of the Agreement. They do not, individually or collectively, create an impediment to the approval of the Agreement. Rather, they are matters to which I think attention ought to be drawn to avoid misunderstandings in the future.
First, clause 15.2b. of the Agreement allows the employer to “withhold monies due” to an employee if they fail to provide notice of termination. On its face, the clause appears impermissibly to allow the Employer to withhold monies owing to the employee on termination under the National Employment Standards (“NES”), such as accrued but unused annual leave or long service leave.
Second, clause 19 of the Agreement is titled “Redeployment and Redundancy”. Clause 19.1 provides, amongst other things, that the “entitlement to severance pay under this Agreement does not apply if the Company offers or arranges suitable alternative employment and the Employee either rejects or accepts that employment”. This might be construed as permitting the employer to unilaterally determine not to pay redundancy pay without an appropriate order from the Commission under s 120 of the Act.
Having noted these two matters, though, I observe that clause 4b. of the Agreement provides that the NES will prevail over the terms of the Agreement to the extent of any inconsistency. That clause should ensure that clauses 15.2b. and 19.1 are construed and applied in a manner consistent with the Act.
Third, clause 27 of the Agreement deals with Individual Flexibility Arrangements. It does not expressly state that an IFA must be about permitted matters and not contain unlawful terms, as required by s 203(2)(b) of the Act. However, cl 27(f)(iii) provides that the IFA must “otherwise comply with” the Act. This should ensure compliance with s 203(2)(b).
Fourth, the Agreement does not in terms contain a Delegates’ Rights term. However, clause 4a. of the Agreement incorporates the Manufacturing and Associated Industries and Occupations Award 2020. Consequently, the workplace delegates’ rights terms of clause 40A of the Award forms a term of the Agreement.
Having regard to the material in the application and accompanying declaration, 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 have been met.
The AMWU has given notice under s 183 of the Act that it wants the Agreement to cover it. As required by s 201(2) of the Act, I note that the Agreement covers the AMWU.
The Agreement is approved. In accordance with s 54 of the Act, the Agreement will operate from 18 December 2024. The nominal expiry date of the Agreement is 30 October 2026.
COMMISSIONER
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