BAE Systems Australia Limited T/A BAE Systems Australia

[2024] FWCA 2067

[2024] FWCA 2067

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

BAE Systems Australia Limited T/A BAE Systems Australia

(AG2024/1541)

Manufacturing and associated industries
DEPUTY PRESIDENT GRAYSON	SYDNEY, 4 JUNE 2024

Application for approval of the BAE Systems Australia Limited (Henderson) Enterprise Agreement 2023-2026

1. BAE Systems Australia Limited (BAE) has made an application for approval of an enterprise agreement known as the BAE Systems Australia Limited (Henderson) Enterprise Agreement 2023-2026 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement.

Transitional arrangements under the Secure Jobs, Better Pay amendment

1. The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) (Amending Act) made a number of changes to enterprise agreement approval processes in Part 2-4 of the Act, that commenced operation on 6 June 2023. By reason of the transitional arrangements for the Amending Act and the notification time for the Agreement of 17 May 2023, the genuine agreement requirements for agreement approval in Part 2-4 of the Act, as it was just before 6 June 2023, apply to the present application. Further, as the Agreement was made on 24 April 2024 the better off overall test requirements in Part 2-4 of the Act as amended on 6 June 2023 apply.

Error to be corrected pursuant to s.586(a)

1. The Agreement lodged contained an error at Clause 6 Definitions, which referred to ‘Ordinary hours of work’ being defined per Clause 0 of the Agreement. The Agreement does not contain a Clause 0.

1. The Commission wrote to the parties on 17 May 2024 raising the matter with the parties and seeking the provision of clarification and/or submissions as to how the Commission should deal with the issue. On 27 May 2024, the Applicant wrote to the Commission confirming that the reference to Clause 0 was an inadvertent error. The Applicant submitted that the reference to Clause 0 was clearly intended to refer to Clause 9 as confirmed by the internal formatting of the document, which contained a hyperlink which, when clicked, points to Clause 9 of the Agreement. The Applicant submitted that the Commission exercise its power to correct the error in Clause 6 so that the reference to Clause 0 instead referred to Clause 9. I am satisfied that the correction should be made and that it is appropriate to do so pursuant to s.586(a) of the Act.

Notification of time, place and method of vote

1. The notification of time, place and method of vote occurred on 11 April 2024. Voting for the Agreement commenced on 18 April 2024. This was only 6 clear days prior to the commencement of voting, and was not before the start of the access period as required by s.180(3) of the Act. The Employer provided submissions that this matter constituted a minor procedural or technical error.

1. I am satisfied having regard to those submissions and the decision of the Full Bench in Huntsman Chemical Company Australia Pty Limited T/A RMAX Rigid Cellular Plastics & Others,[1] that these matters constituted minor technical or procedural errors for the purposes of s.188(2)(a) of the Act, and that the employees covered by the Agreement were not likely to have been disadvantaged by the errors.

National Employment Standards (NES) precedence term

1. Clause 16.7(b) of the Agreement states that where an employee takes annual leave in advance and resigns or is dismissed before completing the service required in respect of which the leave in advance had been granted, BAE will withhold that amount of pay from the Employee’s final payment. . Clause 34.5 of the Agreement provides that if an employee leaves BAE without providing and/or working out their full notice period, BAE has the right to withhold monies due to the employee. These clauses appear to restrict an employee’s entitlement to payment of NES entitlements upon termination of employment as the clauses do not appear to limit the source of any monies which may be withheld or deducted, and accordingly appears to permit the employer to withhold or deduct monies owing to the employee under the NES (such as accrued but unused annual leave on termination), which may be inconsistent with Chapter 2 Part 2.2 Division 2 of the Act.

1. Clause 22.2 of the Agreement provides that when a public holiday falls on a Saturday or a Sunday and the holiday is observed on the next succeeding Monday, the Saturday and/or Sunday shall not be deemed public holidays. Accordingly, clause 22.2 may not be consistent with s.115(1)(b) of the Act.

1. Clause 35 of the Agreement covers abandonment of employment. However, the Agreement does not state that employees deemed to have abandoned their employment are entitled to notice of termination. Accordingly, clause 35 may not be consistent with s.117 of the Act.

1. To the extent that the above clauses may be inconsistent with the National Employment Standards (NES), I note that in accordance with the NES precedence term in Clause 2.4 of the Agreement, they are to be read and interpreted in conjunction with the NES.

Section 190 Undertakings

1. The employer provided written undertakings. A copy of the undertakings is attached in 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.

Section 186, 187, 188 and 190

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

Section 183 Bargaining Representatives

1. The Construction, Forestry, Maritime and Energy Union (CFMEU), the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU), and the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) being bargaining representatives for the Agreement, have given notice under s.183 of the Act that they want the Agreement to cover them.

1. In accordance with s.201(2), I note that the Agreement covers the CFMEU, CEPU and AMWU.

Approval

1. The Agreement is approved and, in accordance with s.54 of the Act, will operate from 11 June 2024. The nominal expiry date of the Agreement is 8 September 2026.

DEPUTY PRESIDENT

ANNEXURE A

[1] [2019] FWCFB 318.

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