Boom Logistics Ltd T/A Boom Logistics
[2022] FWCA 2616
•3 AUGUST 2022
| [2022] FWCA 2616 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.185—Enterprise agreement
Boom Logistics Ltd T/A Boom Logistics
(AG2022/2447)
Boom Logistics Ltd East Rockingham Crane Operators Enterprise Agreement 2022
| Building, metal and civil construction industries | |
| DEPUTY PRESIDENT BEAUMONT | PERTH, 3 AUGUST 2022 |
Application for approval of the Boom Logistics Ltd East Rockingham Crane Operators Enterprise Agreement 2022
Boom Logistics Ltd T/A Boom Logistics has made an application for the approval of an enterprise agreement known as the Boom Logistics Ltd East Rockingham Crane Operators Enterprise Agreement 2022 (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.
Several clauses were found to be inconsistent with the National Employment Standards (NES). These clauses were clauses 39.2, 24.5 and 21.5. In respect of clause 39.2, it provided that each permanent employee shall accrue personal/carer’s leave of 10 days paid leave a year after 12 months service. This is inconsistent with s 96(2) of the Act, which states that an employee’s entitlement to paid personal/carer’s leave accrues progressively during a year of service.
Regarding clause 24.5, it provided that retrenched employees shall be entitled to three weeks’ pay on the basis of ordinary time earnings for each completed year of service and pro rata payments for any uncompleted final year up to a maximum of twenty-seven weeks’ pay. This appears to be inconsistent with s 119(2) of the Act, which provides that an employee with at least one year period of continuous service is entitled to four weeks redundancy pay.
Finally, clause 21.5 set out circumstances where an employee is deemed to have abandoned their employment. However, the clause does not specify that an employee is entitled to payment of notice of termination in accordance with s 117 the Act.[1]
Notwithstanding the above, the Applicant sought to rely upon clause 6 of the Agreement which provides that the NES prevails to the extent of any inconsistency with the terms of the Agreement. I am satisfied that such reliance remedies the aforementioned issues.
The Applicant has 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.
In compliance with s 190(4) of the Act, the bargaining representative’s views regarding the undertakings proffered were sought. They were provided with the opportunity to raise and address any objections they had to the undertakings proffered by the Applicant. No objection was raised.
Subject to the undertakings referred to above, and 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, 188, and 190 of the Act as are relevant to this application for approval have been met.
The Construction, Forestry, Maritime, Mining and Energy Union (the organisation), 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), and based on the declaration provided by the organisation, I note that the organisation is covered by the Agreement.
The Agreement was approved on 3 August 2022 and, in accordance with s 54, will operate from 10 August 2022. The nominal expiry date of the Agreement is 25 December 2025.
DEPUTY PRESIDENT
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Annexure A
[1] Bienias v Iplex Pipelines Australia Pty Limited[2017] FWCFB 38, [58].
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