Benenden Investments Pty Ltd
[2025] FWCA 43
•7 JANUARY 2025
| [2025] FWCA 43 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.185—Enterprise agreement
Benenden Investments Pty Ltd
(AG2024/5072)
BENENDEN INVESTMENTS PTY LTD ENTERPRISE AGREEMENT 2024
| Building, metal and civil construction industries | |
| COMMISSIONER SLOAN | SYDNEY, 7 JANUARY 2025 |
Application for approval of the Benenden Investments Pty Ltd Enterprise Agreement 2024
Benenden Investments Pty Ltd has made an application for approval of an enterprise agreement known as the Benenden Investments Pty Ltd Enterprise Agreement 2024 (“Agreement”). The application is made under s 185 of the Fair Work Act 2009 (“Act”). The Agreement is a single enterprise agreement.
Clause 34 of the Agreement is titled “Termination”. Subclause 34.5 provides that Benenden “may recover any money owing by an employee, including for clothing, tools, keys, phones etc. that are not returned in good working order, notice not provided or other outstanding monies, and may deduct any money owing from an employee’s termination pay”. 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, such as accrued but unused annual leave or long service leave.
Having noted that, cl 1.4 of the Agreement provides that where there is an inconsistency between the Agreement and the NES, and the NES provides a greater benefit to employees, the NES will prevail to the extent of the inconsistency. This should ensure that clause 34.5 is not applied in a manner contrary to the NES. In raising the issue, it is my intention to ensure that this is the case.
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 Agreement is approved. In accordance with s 54 of the Act, the Agreement will operate from 14 January 2025. The nominal expiry date of the Agreement is 7 January 2029
COMMISSIONER
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