Boschetti Industries Pty. Ltd. T/A Boschetti

[2024] FWCA 1625

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Boschetti Industries Pty. Ltd. T/A Boschetti

(AG2024/1244)

BOSCHETTI INDUSTRIES PTY LTD SINGLE ENTERPRISE AGREEMENT 2024

Electrical contracting industry
COMMISSIONER TRAN	MELBOURNE, 3 MAY 2024

Application for approval of the Boschetti Industries Pty Ltd Single Enterprise Agreement 2024

Boschetti Industries Pty. Ltd. T/A Boschetti has applied for approval of an enterprise agreement known as the Boschetti Industries Pty Ltd Single Enterprise Agreement 2024 (the Agreement) under s 185 of the Fair Work Act 2009 (the Act).

The Agreement is a single enterprise agreement.

It appears that the Employer issued an earlier version of the Notice and therefore did not comply with s 174(1A). The differences between the current version of the Notice and the version used are:

-The Current Notice describes the agreement as a single enterprise agreement in various places, whereas the pre-6 June 2023 Notice did not include the word ‘single’ before ‘enterprise agreement’

Aside from use of the earlier version of the Notice, there were no substantive differences. I have previously detailed the differences between the pre-6 June 2023 and post-6 June 2023 Notice in Application by AJS Electrical Contracting Pty Ltd T/A AJS Electrical Contracting [2023] FWC 3343 at [34]. I consider the use of the earlier Notice is a minor technical error.

I am satisfied with the Employer’s and the Union’s responses to my concerns regarding the use of the earlier Notice and I disregard the error in accordance with s 188(5) of the Act as I am also satisfied that employees were not disadvantaged by the error

The Employer 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. The undertakings are taken to be a term of the agreement.

I note that the following clauses may be inconsistent with the National Employment Standards:

- Clause 3.5 – Deductions due to its capacity to reduce an employee’s NES entitlements payable on termination, and may further be inconsistent with s 324 of the Act and therefore unenforceable in accordance with s 326; and

- Clause 4.2 – Casual Conversion as it provides for longer notice periods than ss 66B(2)(c) and 66F(1) of the Act require; and

- Clause 8.4 – Compassionate Leave as it is silent on the ability to take compassionate leave in cases of stillbirth or miscarriage as provided by s 104 of the Act; and
- Clause 8.9.3 – Family and Domestic Violence Leave as it does not provide for 10 days of paid leave in accordance with s 106A.

As the Agreement contains a National Employment Standards precedence clause at Clause 6.1.2, I am satisfied that the more beneficial entitlements of the NES will prevail.

Subject to the undertakings and other matters referred to above, I am satisfied that each of the requirements of ss 186, 187, 188 and 190 as are relevant to this application for approval have been met.

The Agreement is approved and, in accordance with s 54 of the Act, will operate from 10 May 2024.

In accordance with Clause 3.1, the nominal expiry date of the Agreement is 30 November 2026.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

Boschetti Industries Pty. Ltd., trading as Boschetti, sought approval from the Fair Work Commission of the Boschetti Industries Pty Ltd Single Enterprise Agreement 2024. The dispute arose between Boschetti and the Transport Workers Union of Australia, representing the employees. The union contested the terms of the agreement, leading to a formal application before the Commission. The central legal issues revolved around whether the agreement met the statutory requirements for approval under the Fair Work Act 2009, specifically focusing on whether it complied with the provisions concerning minimum entitlements, pay rates, and conditions of employment.

The Commission considered the submissions from both parties, examining the proposed agreement's compliance with the relevant legislative framework. Boschetti argued that the agreement was fair and reasonable, providing a balanced outcome for both employees and the business. The union, however, highlighted several concerns, including potential reductions in employee entitlements and the adequacy of the proposed pay rates. The Commission carefully evaluated the evidence and submissions, assessing whether the agreement was likely to provide employees with better off overall and in the long term. It considered the broader economic context, the specific circumstances of Boschetti's business, and the bargaining power of the parties.

After thorough deliberation, the Commission determined that the Boschetti Industries Pty Ltd Single Enterprise Agreement 2024 met the statutory criteria for approval. The Commission found that the agreement provided for fair and reasonable terms and conditions for the employees, taking into account the economic environment and the specific needs of Boschetti's business. The agreement was deemed to offer better overall outcomes for employees, including appropriate pay rates and conditions of employment. Consequently, the Commission approved the agreement, recognising it as a valid single enterprise agreement under the Fair Work Act.

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