Boom Logistics Limited
[2024] FWCA 4093
•25 NOVEMBER 2024
| [2024] FWCA 4093 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.185—Enterprise agreement
Boom Logistics Limited
(AG2024/4340)
BOOM LOGISTICS LTD HUNTER VALLEY WORKSHOP ENTERPRISE AGREEMENT 2024
| Manufacturing and associated industries | |
| COMMISSIONER SLOAN | SYDNEY, 25 NOVEMBER 2024 |
Application for approval of the Boom Logistics Ltd Hunter Valley Workshop Enterprise Agreement 2024
Boom Logistics Limited (“the Employer”) has made an application for approval of an enterprise agreement known as the Boom Logistics Ltd Hunter Valley Workshop Enterprise Agreement 2024 (“Agreement”), pursuant to s 185 of the Fair Work Act 2009 (“Act”). The Agreement is a single enterprise agreement.
The Employer has provided a written undertaking (“Undertaking”). A copy of the Undertaking is attached in Annexure A. I am satisfied that the Undertaking is not likely to cause financial detriment to any employee covered by the Agreement or to result in substantial changes to the Agreement.
The Commission sought the views of the employee bargaining representatives in respect of the Undertaking.
Pursuant to s 190(3) of the Act, I accept the Undertaking. The Undertaking is taken to be a term of the Agreement.
Clauses 11.5 and 11.6 of the Agreement deal with termination of the employment by an employee. They provide that if the employee does not provide the required notice, the Employer may deduct from their termination payments the amount the employee would have been paid for the period of noticed not provided. 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 (“NES”), such as accrued but unused annual leave or long service leave.
Further, clause 12.4 of the Agreement provides that redundancy payments will be made at the rate of 3 weeks per year of service. Under s 119 of the Act, an employee with at least 1 year but less than 2 years continuous service is entitled to 4 weeks redundancy pay.
Having noted these matters, cl 50 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 cll 11.5, 11.6 and 12.4 of the Agreement are not applied in a manner contrary to the NES. In raising these issues, it is my intention to ensure that this is the case.
Having regard to the Undertaking, and on the basis of 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 2 December 2024. The nominal expiry date of the Agreement is 1 June 2027.
COMMISSIONER
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Annexure A
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