Construction, Forestry, Maritime, Mining and Energy Union

[2022] FWCA 1369

[2022] FWCA 1369

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

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

Construction, Forestry, Maritime, Mining and Energy Union

(AG2022/1069)

SLA Nichols Pty Ltd and CFMEU (WA) Enterprise Agreement 2020-2024

Building, metal and civil construction industries
COMMISSIONER PLATT	ADELAIDE, 21 APRIL 2022

Application for approval of the SLA Nichols Pty Ltd and CFMEU (WA) Enterprise Agreement 2020-2024

1. An application has been made for approval of an enterprise agreement known as the SLA Nichols Pty Ltd and CFMEU (WA) Enterprise Agreement 2020-2024 (the Agreement) pursuant to s.182(4) of the Fair Work Act 2009 (the Act) by the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU). The employer covered by the Agreement is SLA Nichols Pty Ltd. The Agreement is a single enterprise agreement that is a greenfields agreement.

1. The matter was allocated to my Chambers on 12 April 2022 and was determined on the papers.

1. There are three National Employment Standards (NES) issues that require comment:

·   In respect of personal/carer’s leave, clauses 38.2(b) and 38.3(d) of the Agreement provide that if it is not practicable for the employee to give prior notice of absence, the employee will notify the employer by telephone of such absence at the first opportunity on the day of the absence. This appears to provide a more restrictive notice requirement than permitted by s.107(2)(a) of the Act.

·   Clause 40.2 of the Agreement defines “family member” of an employee for the purpose of family and domestic violence leave, however it appears to exclude that close relatives of an employee can include someone who is related to the employee according to Aboriginal or Torres Strait Islander kinship rules, as per s.106(B)(3)(b) of the Act.

·   Clause 41.6 of the Agreement provides the employer and the employees may agree, by consent of the majority of affected employees covered by the Agreement, to substitute another day for any public holiday prescribed in the clause. This appears to be inconsistent with s.115(3) of the Act, which allows for an agreement between an employer and an individual employee.

1. Clause 4.5 of the Agreement is an effective NES precedence clause, in that it states that where there is an inconsistency between the Agreement and the NES, and the NES provides a greater benefit, the NES will apply to the extent of the inconsistency. As a result of the NES precedence clause, the above clauses will not apply to the extent that they are inconsistent with the NES.

1. Upon my request, the Applicant provided evidence which satisfied me that the Agreement covers a genuine new enterprise and therefore meets the requirements of s.172(2)(b) of the Act.

1. In accordance with s.187(5)(a) of the Act, I am satisfied that the CFMMEU is entitled to represent the industrial interests of a majority of employees who will be covered by the Agreement in relation to the work that is to be performed under it.

1. Pursuant to s.53(2)(b) of the Act I note that the Agreement was made with the CFMMEU, and that the Agreement covers this organisation.

1. I am satisfied that each of the requirements of ss.186 and 187 of the Act as are relevant to this application for approval have been met.

1. I am satisfied that it is in the public interest to approve the Agreement.

1. The Agreement is approved and, in accordance with s.54 of the Act, will operate from 7 days from the date of approval of the Agreement. The nominal expiry date is 31 December 2023.

COMMISSIONER

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