B&R Enclosures T/A B&R Enclosures

[2023] FWCA 2044

[2023] FWCA 2044

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

B&R Enclosures T/A B&R Enclosures

(AG2023/1830)

B&R ENCLOSURES PTY LTD BRISBANE ENTERPRISE AGREEMENT 2023

Manufacturing and associated industries
COMMISSIONER PLATT	ADELAIDE, 6 JULY 2023

Application for approval of the B & R Enclosures Pty Ltd Brisbane Enterprise Agreement 2023

1. An application has been made for approval of an enterprise agreement known as the B & R Enclosures Pty Ltd Brisbane Enterprise Agreement 2023 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act) by B&R Enclosures T/A B&R Enclosures (the Applicant). The agreement is a single enterprise agreement.

1. The matter was allocated to my Chambers on 19 June 2023.

1. In respect of the Notice of Employee Representational Rights (NERR) issues, it appears that the two NERR documents were provided to employees on 24 April 2023. One NERR was issued for employees who were covered by individual Transitional Instruments – Australian Workplace Agreements and another NERR (which omitted the ITEA paragraph). was issued to employees who were covered by the Manufacturing and Associated Industries and Occupations Award 2020 (the Award). A toolbox meeting was also conducted where employees were advised that the intention was ‘to establish an Enterprise Agreement to cover the Brisbane workshop, warehouse, maintenance, warehouse, and electrical integration team members, who are classified C13, C12, C11 and C10 under the Manufacturing Award. Despite the slightly unusual method (it being preferable to use the same NERR for all, and to include more details about coverage in the NERR) I do not believe that it had the effect of disenfranchising any employee who is covered by the proposed Agreement from participation in the bargaining process. I am satisfied (taking into consideration s.188(2) of the Act and the decision in Huntsman Chemical Company Australia Pty Limited T/A RMAX Rigid Cellular Plastics & Others) that the procedural or technical error is minor and that the employees were not likely to have been disadvantaged, and accordingly, that there has been a genuine agreement.

1. There are three National Employment Standards (NES) issues that require comment:

·   Notice Required to Take Personal/Carer’s Leave – Clause 34.5 of the Agreement asks that an employee, where practicable, must give their supervisor notification within at least one hour before their rostered start time to advise them of their absence or lateness for work due to personal/carer’s leave. This appears more restrictive than s.107(2) of the Act which allows for notice to be given to the employer as soon as practicable which may be a time after the leave has started.

·   State Public Holiday – Clause 41.2(f) of the Agreement refers to the King’s birthday holiday on the day on which it is celebrated in the state of South Australia or a region of the state of South Australia. I note this Agreement covers Queensland employees only, and the date of the King’s birthday public holiday in Queensland differs to the date in South Australia.

·   Ordinary Hours – Clause 27.2(c) of the Agreement allows employees to agree to work a roster cycle that allows for an RDO, in doing so however, the clause refers to employees working up to 40 ordinary hours per week, as opposed to 40 hours per week. The reference to ordinary hours in this clause appears inconsistent with s.62 of the Act which prescribes the maximum weekly hours as 38 hours or less.

1. Clause 6 of the Agreement acts as an effective NES precedence clause, in that it states that in the event of an inconsistency between the Agreement and the NES, and the NES provides a greater benefit, the NES will apply to the extent of the inconsistency. As a result of the NES precedence clause, the above clause(s) will not apply to the extent that they are inconsistent with the NES.

1. The Applicant has submitted an undertaking in the required form dated 23 June 2023. The undertaking deals with the following topics:

·   Clause 35.3 of the Agreement to read as ‘evidence requirements as set out in clauses 34.6 and 34.7.’

·   Clause 23.2 of the Agreement will not operate to prevent Junior Employees from being paid the equivalent adult wage rate, providing they perform assembly or other equivalent work as an employee classified in Clause 13.

·   The Casual Loading described in Clause 15 of the Agreement will be in addition to any loading or penalty imposed by the Agreement.

·   Overtime Shift Penalties for Continuous Shift Workers described in Clause 30 of the Agreement will be paid in accordance with clauses 32.2(g) & (h) of the Award.

·   Shift Penalties - Less than 5 Successive Shifts will be paid in accordance with clause 33.2(e) of the Award.

1. No bargaining representatives were appointed.

1. The undertaking appears to meet the requirements of s.190(3) of the Act and I have accepted it. As a result, the undertakings are taken to be a term of the Agreement.

1. I am satisfied that each of the requirements of ss.186, 187, 188 and 190 of the Act as are relevant to this application for approval have been met.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 7 days after the date of approval of the Agreement. The nominal expiry date is 12 July 2027.

COMMISSIONER

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