Broadspectrum (Australia) Pty Ltd

[2020] FWCA 2994

[2020] FWCA 2994

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Broadspectrum (Australia) Pty Ltd
(AG2020/1364)

BROADSPECTRUM (BOTANY INDUSTRIOL PARK & OTHER SITES - NSW) ENTERPRISE AGREEMENT 2020

Building, metal and civil construction industries
DEPUTY PRESIDENT DEAN	SYDNEY, 9 JUNE 2020

Application for approval of the Broadspectrum (Botany Industrial Park & Other Sites - NSW) Enterprise Agreement 2020.

[1] An application has been made for approval of an enterprise agreement known as the Broadspectrum (Botany Industrial Park & Other Sites - NSW) Enterprise Agreement 2020 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Broadspectrum (Australia) Pty Ltd. The Agreement is a single enterprise agreement.

[2] 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.

[3] Subject to the undertaking 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.

[4] The consultation term contained in clause 36 of the Agreement does not comply with the requirements of s.205(1) of the Act. Pursuant to s.205(2) of the Act, the model consultation term is taken to be a term of the Agreement.

[5] Clause 13(b)(2) of the Agreement makes provision for deductions which in my view may not be permitted deductions within the meaning of s.324 of the Act, and pursuant to s.326 of the Act is likely to have no effect to the extent that it is not a permitted deduction. However, notwithstanding my view on that, it is not a matter to which I am to have regard in terms of whether or not the Agreement should be approved and does not represent a barrier to the approval of the Agreement.

[6] I further note that clause 13(c) (Abandonment of employment), clause 19 (Public Holiday), clause 20.1 (Annual leave), clause 21(c) (Personal Leave), clause 22 (Compassionate Leave) and Clause 23(a) (Jury Service) of the Agreement are likely to be inconsistent with the National Employment Standards (NES). However, noting clause 6 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.

[7] The “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) and the Construction, Forestry, Maritime, Mining and Energy Union, being bargaining representatives for the Agreement, have given notice under s.183 of the Act that they want the Agreement to cover them. In accordance with s.201(2) I note that the Agreement covers the organisations.

[8] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 16 June 2020. The nominal expiry date of the Agreement is 27 January 2023.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<AE508232  PR720016>

Annexure A