Construction, Forestry and Maritime Employees Union

[2024] FWCA 4078

[2024] FWCA 4078

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185 - Application for approval of a single-enterprise agreement

Construction, Forestry and Maritime Employees Union

(AG2024/4226)

FERRISTEX PTY LTD ENTERPRISE AGREEMENT 2024 -2027

Manufacturing and associated industries
COMMISSIONER REDFORD	MELBOURNE, 22 NOVEMBER 2024

Application for approval of the Ferristex Pty Ltd Enterprise Agreement 2024-2027

1. An application has been made for approval of an enterprise agreement known as the Ferristex Pty Ltd Enterprise Agreement 2024-2027 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Construction, Forestry and Maritime Employees Union. The Agreement is a single enterprise agreement.

Undertakings.

1. In response to several issues raised with Ferristex Pty Ltd in relation to its application, it has provided written undertakings, a copy of which are 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 pursuant to s 191(1) of the Act. The undertakings relate to: 

a.The interaction between the Agreement and the National Employment Standards (NES) (NES precedence undertaking).

Inconsistencies with the National Employment Standards.

1. The NES precedence undertaking provides that where there is an inconsistency between the Agreement and the NES, and the NES provides a greater benefit, the NES provision will apply to the extent of any inconsistency. 

2. On this basis, I am satisfied that the apparent inconsistencies with the NES outlined below do not prevent the approval of this agreement:   

a.Clause 12.8(a)(ii) of the Agreement provides an entitlement to compassionate leave for casuals but appears to be restricted to the death of an immediate family or household member – however the more expansive entitlement NES will have application as a result of the NES precedence undertaking.

b.While clause 12.11 of the Agreement, which deals with casual conversion, does not appear to include new employee casual choice provisions which will become effective from February 2025, when read in conjunction with the NES precedence undertaking those provisions will have effect from the relevant date.

c.Clause 30.5(a) of the Agreement appears to provide 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 employee, rather than a majority of employees however, when read in conjunction with the NES precedence undertaking will have no effect to the extent of any inconsistency

d.Clause 12.9 of the Agreement, which deals with notice about personal leave, appears to require that notice of absence must be given by telephone at the first opportunity on the day of absence. The NES requires notice to be given as soon as is reasonably practicable. If any inconsistency arises, the NES provision will apply as a result of the NES precedence undertaking.

Mandatory clauses.

1. The Agreement does not appear to contain a workplace delegates’ rights clause, as required by s 205A of the Act, however, provides explicitly that the workplace delegates’ rights clause in the Textile, Clothing, Footwear and Associated Industries Award 2020 is intended to apply (clause 40 of the Agreement). While the Agreement mistakenly refers to clause 32A of the Award, instead of 37A, I am satisfied that the workplace delegates rights term of the Award applies as if it were a term of this agreement (through the operation of clause 9.1 of the Agreement, in any event).

Consideration

1. 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.

1. The Construction, Forestry and Maritime Employees Union – Manufacturing Division 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.

1. The Agreement is approved and, in accordance with s.54 of the Act, will operate from 29 November 2024.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

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ANNEXURE A