Cigweld Pty Ltd T/A Cigweld

[2024] FWCA 356

[2024] FWCA 356

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Cigweld Pty Ltd T/A Cigweld

(AG2023/5467)

CIGWELD PRESTON AND UNITED WORKERS UNION ENTERPRISE AGREEMENT 2023

Storage services
COMMISSIONER MIRABELLA	MELBOURNE, 31 JANUARY 2024

Application for approval of the Cigweld Preston and United Workers Union Enterprise Agreement 2023.

1. Cigweld Pty Ltd T/A Cigweld (the Employer) has made an application for approval of an enterprise agreement known as the Cigweld Preston and United Workers Union Enterprise Agreement 2023 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (Cth) (the FW Act). The Agreement is a single enterprise agreement.

1. The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) (Amending Act) made a number of changes to enterprise agreement approval processes in Part 2-4 of the FW Act that 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 FW Act, as it was just 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. Question 18 of the Form F17A provides that the notification time for the Agreement was 25 May 2023.

1. Under transitional arrangements, amendments made by Part 16 of Schedule 1 to the Amending Act in relation to the better off overall test requirements for agreement approval applications apply where the agreement was made on or after 6 June 2023. The better off overall test provisions in Part 2-4 of the FW Act, as it was just before 6 June 2023, continue to apply in relation to agreement approval applications where the agreement was made before 6 June 2023. Question 26.2 of the Form F17A provides that the Agreement was made on 18 December 2023.

1. The Employer provided to employees a notice of employee representational rights which was not in its prescribed form. Pursuant to s.188(2), I am satisfied that the Agreement would have been genuinely agreed to but for the minor procedural error made in relation to the requirements in s.174(1A) of the FW Act. I am satisfied that the employees covered by the Agreement were not likely to have been disadvantaged by the error. As a result, I am satisfied that the Agreement has been genuinely agreed to within the meaning of s.188(2) of the FW Act.

1. Clause 25.2 of the Agreement provides that the Employer must contribute to one of two named superannuation funds. This clause appears inconsistent with the Treasury Laws Amendment (Your Superannuation, Your Choice) Act 2020 (Super Choice Act). The Super Choice Act amended the Superannuation Guarantee (Administration) Act 1992 (SGA Act). Under the Super Choice Act (and the amended SGA Act) a clause in an enterprise agreement that restricts an employee’s choice of superannuation fund is not enforceable.

1. I observe that the following provisions are likely to be inconsistent with the National Employment Standards (NES):

·   Clause 19: Abandonment of employment

·   Clause 35.1: Compassionate leave

·   Clause 38.4: Substitution of public holidays

1. However, noting clause 7 of the Agreement, I am satisfied that the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

1. The United Workers’ Union, being a bargaining representative for the Agreement, has given notice under s.183 of the FW 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 Agreement covers the organisation.

1. The Agreement was approved on 31 January 2024 and, in accordance with s.54, will operate from 7 February 2024. The nominal expiry date of the Agreement is 30 September 2026.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

<AE523304  PR770651>