Boom Logistics Ltd

[2024] FWCA 459

[2024] FWCA 459

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

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

Boom Logistics Ltd

(AG2024/15)

BOOM LOGISTICS LTD WA TRAVEL TOWER ENTERPRISE AGREEMENT 2023

Building, metal and civil construction industries
COMMISSIONER LIM	PERTH, 2 FEBRUARY 2024

Application for approval of the Boom Logistics Ltd WA Travel Tower Enterprise Agreement 2023

1. Boom Logistics Ltd (the Applicant) has made an application for the approval of an enterprise agreement known as Boom Logistics Ltd WA Travel Tower Enterprise Agreement 2023 (the Agreement). The application was made under s 185 of the Fair Work Act 2009 (Cth) (the Act).  The Agreement is a single enterprise agreement.

1. The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) (the Amending Act) made several changes to enterprise agreement approval processes in Part 2-4 of the Act, which commenced operation on 6 June 2023.

1. Under transitional arrangements, amendments made by Part 14 of Schedule 1 to the

Amending Act in relation to genuine agreement requirements for agreement approval applications apply where the notification time for the agreement was on or after 6 June 2023. The genuine agreement provisions in Part 2-4 of the Act, as it was before 6 June 2023, continue to apply in relation to agreement approval applications where the notification time for the agreement was before 6 June 2023. The notification time for the Agreement was 1 January 2023.

1. On the basis of the material contained in the application and accompanying declarations, I am satisfied that each of the requirements of ss 186, 187 and 188 of the Act as are relevant to this application for approval have been met.

1. The title of the agreement in the NERR differed from the title contained in clause 1 of the Agreement. Pursuant to s 188(2) of the Act (as it was prior to 6 June 2023), I am satisfied that the agreement would have been genuinely agreed to but for the minor technical errors made in relation to the requirements set out in s 174(1A) of the Act. I am satisfied that the employees covered by the agreement were not likely to have been disadvantaged by the errors. As a result, I am satisfied that the Agreement has been genuinely agreed within the meaning of s 188(2) of the Act.

1. I note the following clauses.

·   Clause 23.8 of the Agreement states that if an employee fails to give notice or leaves before the end of the notice period they will forfeit an amount to the Company (and the Company may withhold from any monies due to the Employee on termination) an amount equal to the total of all amounts that, if the employment had continued until the end of the required notice period, the Company would have become liable to pay. As the clause does not specify if this deduction would be from the employee’s wages, it raises an issue of deductions being made from the employee’s entitlements under the NES.

· Clause 23.14 of the Agreement states that if an Employee is absent from work for a period of 3 working days without consent and without notification to the Company, this will be taken as prima facie evidence that the employee has abandoned employment. Termination of employment by abandonment in accordance with this sub-clause will operate as from the date of the last attendance at work or the last day's absence in respect of which consent was granted, or the date of the last absence in respect of which notification was given to the Company, whichever was the later. This may be inconsistent with the NES at s 117 of the Act.

1. However, I am satisfied that under clause 6 of the Agreement, the more beneficial entitlements of the National Employment Standards (NES) will prevail where there is an inconsistency between the Agreement and the NES.

1. The Agreement was approved on 2 February 2024 and, in accordance with s 54, will operate from 9 February 2024. The nominal expiry date of the Agreement is 2 February 2028.

COMMISSIONER

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