Autocare Services Pty Ltd T/A Autocare Services Pty Ltd

[2024] FWCA 495

[2024] FWCA 495

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185 - Application for approval of a single-enterprise agreement

Autocare Services Pty Ltd T/A Autocare Services Pty Ltd

(AG2024/8)

AUTOCARE SERVICES (VEHICLE PROCESSING) ENTERPRISE AGREEMENT 2024

Vehicle industry
DEPUTY PRESIDENT MILLHOUSE	MELBOURNE, 6 FEBRUARY 2024

Application for approval of the Autocare Services (Vehicle Processing) Enterprise Agreement 2024

1. An application has been made for approval of an enterprise agreement known as the Autocare Services (Vehicle Processing) Enterprise Agreement 2024 (Agreement). The Application was made pursuant to s 185 of the Fair Work Act 2009 (Cth) (Act). It has been made by Autocare Services Pty Ltd T/A Autocare Services Pty Ltd (Employer). The Agreement is a single enterprise agreement.

1. The notification time for the Agreement and the date that the Agreement was made post-date 6 June 2023. Accordingly, the legislative changes to the Act in relation to the genuine agreement provisions and the better off overall test requirements apply to this approval application.[1]

1. The Employer has provided written undertakings. A copy of the undertakings is attached at 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.

1. Subject to the undertakings referred to above, I am satisfied that each requirement of ss 186, 187, 188 and 190 as are relevant to this application for approval have been met. For the purposes of the better off overall test, I have had regard to each of the matters in s 193A(2)-(7).

1. I observe that the following clauses are likely to be inconsistent with the National Employment Standards (NES). However, noting clause 7.4 of the Agreement, I am satisfied that the more beneficial entitlements of the NES in the Act will prevail where there is an inconsistency between the Agreement and the NES:

·   Casual conversion: Clause 19.4(i) of the Agreement allows a casual employee to convert to full time employment only. This appears to be contrary to s 66B of the Act which allows a casual employee to convert to full or part time employment.

·   Notice of absence: Clause 39.1 of the Agreement requires employees to notify of their inability to work a rostered shift at least one hour prior to commencement. This appears to be contrary to s 107 of the Act which requires employees to provide notice of their absence from work as soon as reasonably practicable, which may be after the leave has commenced.

·   Personal leave: Clause 41.2 of the Agreement provides circumstances in which an employee must variously provide a medical certificate or statutory declaration to support their absence from work. Clause 41.4 of the Agreement provides that back-dated medical certificates will not be accepted. These clauses appear to be more restrictive than s 107 of the Act which requires employees to provide evidence that would satisfy a reasonable person.

·   Compassionate leave: Clause 42.1 of the Agreement does not appear to provide for compassionate leave in circumstances of a stillbirth or miscarriage. This appears inconsistent with s 104 of the Act.

·   Redundancy: Clause 51.3 of the Agreement provides that severance pay is not payable where the employer finds suitable alternative employment. This appears inconsistent with s 120 of the Act which provides that variation to redundancy pay is subject to an application to the Commission.

1. The “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) being a bargaining representative for the Agreement supports the approval of the Agreement and has given notice under s 183 of the Act that it wants the Agreement to cover it. In accordance with s 201(2) of the Act I note that the Agreement covers the organisation.

1. The Agreement is approved and, in accordance with s 54 of the Act will operate from 13 February 2024. The nominal expiry date of the Agreement is 30 June 2027.

DEPUTY PRESIDENT

Annexure A

[1] The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Amending Act) broadly commenced operation with respect to the genuine agreement provisions and the better off overall test provisions of the Act on 6 June 2023. The transitional arrangements under the Amending Act are not applicable to the present application.

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