Autonexus Pty Limited T/A Autonexus

[2024] FWCA 4070

[2024] FWCA 4070

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

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

Autonexus Pty Limited T/A Autonexus

(AG2024/3884)

AUTONEXUS ENTERPRISE AGREEMENT – VIC VEHICLE OPERATIONS 2024

Vehicle industry
DEPUTY PRESIDENT MILLHOUSE	MELBOURNE, 21 NOVEMBER 2024

Application for approval of the Autonexus Enterprise Agreement – VIC Vehicle Operations 2024

1. An application has been made for approval of an enterprise agreement known as the AutoNexus Enterprise Agreement – VIC Vehicle Operations 2024 (Agreement). The application was made pursuant to s 185 of the Fair Work Act 2009 (Cth) (Act). It has been made by Autonexus Pty Limited T/A Autonexus (Employer). The Agreement is a single enterprise agreement.

1. The Notice of Employee Representational Rights (NERR) provides the Agreement title as ‘AutoNexus Enterprise Agreement – VIC Vehicle Operations 2021,’ whilst clause 1 of the Agreement provides the title as ‘AutoNexus Enterprise Agreement – VIC Vehicle Operations 2024.’ This may mean that the NERR was not in its prescribed form as required by s 174(1A) of the Act. Having regard to the Employer’s submissions, I am satisfied that this is a minor or technical error and employees covered by the Agreement were not likely to have been disadvantaged by it. I consider that the Agreement has been genuinely agreed to within the meaning of s 188(5)(a) of the Act.

1. I am satisfied that 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 (BOOT), I have had regard to each of the matters in s 193A(2)-(7). A concern was raised with the parties regarding the performance of all additional hours at a flat rate of time and a half and the potential impact of this on the BOOT. The Employer’s submission, drawn from work patterns and payroll data, is that the performance of overtime Monday to Friday is capped at two hours per employee and all residual overtime is allocated on a Saturday (when penalty rates under the Agreement match the underpinning modern award). I am satisfied, having regard to these rostering arrangements (which are not in dispute), that employees will not perform a disproportionate amount of overtime Monday to Friday. I am therefore satisfied for the purposes of s 193A(6), and determine under s 193A(6A) of the Act, that the patterns of work described by the employer are the only patterns that are reasonably foreseeable and that is relevant for the BOOT.

1. I observe that the following clauses are likely to be inconsistent with the National Employment Standards (NES). However, noting clause 5.2 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:

• Clause 11 of the Agreement provides compassionate leave where a member of an employee’s immediate family or household contracts or develops a serious illness or sustains a serious injury or dies however it is silent in relation to compassionate leave for stillbirth/miscarriage. This appears to be inconsistent with s 104(1)(b) and (c) of the Act.
• Clause 16 of the Agreement states the requirement for employees to potentially work on a public holiday however does not provide a mechanism for an employee to refuse this request if it is unreasonable or their reasons for not commencing such work is reasonable. This may be inconsistent with s 114 of the Act.

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 28 November 2024. The nominal expiry date of the Agreement is 29 April 2027.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<AE526841  PR781501>