Contract Resources Pty Ltd

[2023] FWCA 2004

[2023] FWCA 2004

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Contract Resources Pty Ltd

(AG2023/1700)

CONTRACT RESOURCES PTY LTD NORTH WEST ENTERPRISE AGREEMENT 2022

Manufacturing and associated industries
COMMISSIONER MATHESON	SYDNEY, 30 JUNE 2023

Application for approval of the Contract Resources Pty Ltd North West Enterprise Agreement 2022

1. An application has been made for approval of an enterprise agreement known as the Contract Resources Pty Ltd North West Enterprise Agreement 2022 (Agreement). The application was made by Contract Resources Pty Ltd (Applicant) pursuant to s.185 of the Fair Work Act 2009 (Cth) (Act). The Agreement is a single enterprise agreement.

1. Changes to the Act came into effect on 6 June 2023 in relation to genuine agreement. The notification time for the Agreement is a date prior to 6 June 2023. In these circumstances and as a consequence of the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Amending Act), clause 66 of Part 13 of Schedule 1 of the Act has the effect that despite the amendments made to the Act by Part 14 of Schedule 1 to the Amending Act, Part 2-4 of the Act continues to apply as if the amendments had not been made. The application has been assessed on this basis, taking into account the provisions of Part 2-4 of the Act in force immediately prior to the commencement of the amendments.

1. Further, the Agreement was made prior to 6 June 2023 and the effect of clause 67 of Part 13 of Schedule 1 of the Act is that the amendments made by Part 16 of Schedule 1 to the Amending Act in relation to the better off overall test do not apply to the agreement.

1. I observe that certain provisions of the Agreement may be inconsistent with the National Employment Standards (NES). In particular, clause 6.2(c)(i) of the Agreement provides that an employee’s entitlement to take personal/carer’s is subject to a condition that requires the employee to inform the employer of their inability to attend for duty within 4 hours of commencement of such absence. This is inconsistent with s.107(2)(a) of the Act which provides that notice of the taking of leave must be given to the employer as soon as practicable (which may be a time after the leave has started). Further, clause 4.1(g)(iii) of the Agreement provides that if an employee fails to give notice, the employer shall have the right to withhold monies due to the employee with a maximum amount equal to the ordinary time rate of pay for the period of notice. This may permit the employer to withhold entitlements owing to the employee under the NES.

1. However, noting clause 3.4 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 Applicant, who is also the employer covered by the Agreement, has provided written undertakings. A copy of the undertakings is attached at Annexure A of this decision (Undertakings). The views of each person I know is a bargaining representative for the Agreement were sought in relation to the Undertakings and no objections were raised. I am satisfied that the effect of accepting the Undertakings is not likely to:

(a)cause financial detriment to any employee covered by the Agreement; or

(b)result in substantial changes to the Agreement.

1. Pursuant to s.190(3) of the Act, I accept the Undertakings.

1. Subject to the Undertakings, and on the basis of the materials before the Commission, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 of the Act as are relevant to the application for approval of the Agreement have been met.

1. The Australian 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) of the Act, 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 7 July 2023. The nominal expiry date of the Agreement is 30 June 2027.

COMMISSIONER

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Annexure A