BOC Limited

[2024] FWCA 2638

[2024] FWCA 2638

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

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

BOC Limited

(AG2024/2305)

BOC LIMITED (TORRENSVILLE) COLLECTIVE UNION AGREEMENT 2024

Manufacturing and associated industries
COMMISSIONER PLATT	ADELAIDE, 17 JULY 2024

Application for approval of the BOC Limited (Torrensville) Collective Union Agreement 2024

1. An application has been made for approval of an enterprise agreement known as the BOC Limited (Torrensville) Collective Union Agreement 2024 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act) by BOC Limited (the Applicant). The agreement is a single enterprise agreement.

1. The matter was allocated to my Chambers on 2 July 2024.

1. On 5 July 2024, I conducted a telephone conference with the parties to seek clarification about aspects of the Agreement and invited the Applicant to address these matters including through the provision of an undertaking.

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

·  Clause 7.7 provides that the absence of an employee for a period exceeding 3 days without the consent of the employer and without notification to the employer shall be prima facie evidence that the employee has abandoned their employment. The employee will be deemed to have abandoned their employment if they have not established, within 14 days, that they were absent for a reasonable cause. This may be inconsistent with notice requirements per s.117 of the Act.

·  Clause 8.2.2 states an employer may withhold monies if the employee fails to give notice of termination; this may provide for an unauthorised deduction from NES entitlements.

·  Clause 9.4.3 states that should an employee receive suitable alternative employment, they would not be entitled to redundancy benefits. This is inconsistent with s.120 of the Act which requires an application be made to the FWC under similar circumstances.

1. Clause 3.2.2 of the Agreement acts as an effective NES precedence clause. As a result, the above clauses will not apply to the extent they are inconsistent with the NES.

1. The Applicant has submitted an undertaking in the required form dated 11 July 2024. The undertaking deals with the following topics:

·  If a Part Time employee works ordinary hours on a Saturday or Sunday, they will be paid in accordance with Clause 10.6.3.

·  If a Part-Time employee is required to work hours in addition to their agreed hours of work they will be paid:

a)150% of their ordinary hourly rate for the first 3 hours and 200% thereafter if the hours are worked Monday-Friday; or

b)if the hours are worked on a weekend, they will be paid in accordance with Clause 10.6.3.

1. A copy of the undertaking has been provided to the bargaining representatives and I have sought their views in accordance with s.190(4) of the Act. The bargaining representatives did not express any view on the undertaking.

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. As the Agreement does not contain a flexibility term which meets the requirements of s.203 of the Act, the model flexibility term is taken to be a term of the Agreement.

1. The Australian Manufacturing Workers’ Union, being a bargaining representative for the Agreement, 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 this organisation.

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.

1. 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 26 April 2027.

COMMISSIONER

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