Breezway Australia Pty Ltd
[2023] FWCA 1648
•6 JUNE 2023
| [2023] FWCA 1648 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.185—Enterprise agreement
Breezway Australia Pty Ltd
(AG2023/1454)
BREEZWAY AUSTRALIA PTY LTD ENTERPRISE AGREEMENT 2022
| Manufacturing and associated industries | |
| DEPUTY PRESIDENT MILLHOUSE | MELBOURNE, 6 JUNE 2023 |
Application for approval of the Breezway Australia Pty Ltd Enterprise Agreement 2022
An application has been made for approval of an enterprise agreement known as the Breezway Australia Pty Ltd Enterprise Agreement 2022 (Agreement). The application was made pursuant to s 185 of the Fair Work Act 2009 (Cth) (Act). It has been made by Breezway Australia Pty Ltd (Employer). The Agreement is a single-enterprise agreement.
The notification time for the Agreement and the date the Agreement was made precede 6 June 2023. Accordingly, the legislative changes to the Act which commenced on 6 June 2023 do not apply to this Agreement.[1]
The Employer has provided a written undertaking. A copy of the undertaking is attached in Annexure A. I am satisfied that the undertaking will not cause financial detriment to any employee covered by the Agreement and that the undertaking will not result in substantial changes to the Agreement. The undertaking is taken to be a term of the Agreement.
Subject to the undertakings 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.
Clause 12.1 of the Agreement provides that that the employer and a majority of affected employees may agree to substitute a public holiday for another day. This appears to be inconsistent with s 115(3) of the Act which provides that the substitution of a public holiday with another day may only occur by agreement between the employer and an individual employee, rather than a majority of employees. Accordingly, clause 12.1 appears to be inconsistent with the National Employment Standards (NES). However, having regard to Appendix 3 of the Agreement, I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.
The “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as 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) I note that the Agreement covers the organisation.
The Agreement is approved and, in accordance with s 54 of the Act, will operate from 13 June 2023. The nominal expiry date of the Agreement is 31 October 2025.
DEPUTY PRESIDENT
Annexure A
[1] The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Amending Act) commenced operation with respect to the genuine agreement provisions and the better off overall test provisions of the Act on 6 June 2023. However, Division 11 of Part 26 of the Amending Act provides that Part 2‑4 of the Act continues to apply, as if the amendments had not been made, in relation to any proposed enterprise agreement for which the notification time occurs before 6 June 2023. Further, Division 12 of Part 26 of the Amending Act provides that the amendments to the better off overall test apply in relation to enterprise agreements made on and after 6 June 2023
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