Convergint Australia Pty Ltd

[2024] FWCA 4256

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s 185—Enterprise agreement

Convergint Australia Pty Ltd

(AG2024/4255)

CONVERGINT WESTERN AUSTRALIA ENTERPRISE AGREEMENT 2024-2028

Electrical contracting industry
COMMISSIONER LIM	PERTH, 2 DECEMBER 2024

Application for approval of the Convergint Western Australia Enterprise Agreement 2024-2028.

Convergint Australia Pty Ltd (the Applicant) has made an application for the approval of an enterprise agreement known as the Convergint Western Australia Enterprise Agreement 2024-2028 (the Agreement). The application was made under s 185 of the Fair Work Act 2009 (Cth) (the Act). The Agreement is a single enterprise agreement.

On the basis of the material contained in the application and accompanying declarations, I am satisfied that each of the requirements of ss 186, 187 and 188 of the Act as are relevant to this application for approval have been met.

I note that the following clauses in the Agreement appear to be inconsistent with the National Employment Standards (NES):

(a)Clause 16(j) provides for the cashing out of annual leave; however, it does not appear to state that the employer will pay the employee at least the full amount that would have been payable had the employee taken the leave that they have forgone per s 94 of the Act.
(b)Clause 17 provides for compassionate leave where a member of an employee’s immediate family or household contracts/develops a personal illness/injury or dies. However, it does not appear to provide for compassionate leave in the case of the stillbirth of a child or miscarriage per s 104 of the Act.
(c)Clause 33(e) states that if an employee fails to give the requisite notice then the Company shall have the right to withhold wages and/or entitlements due to the employee on termination, with a maximum amount equal to the equivalent pay for the period of notice and does not appear to be consistent with the NES.
(d)Clause 41 states that termination of employment by abandonment will operate from the date of last attendance at work or the date of their absence in respect of which notification has been given or consent has been granted. This appears to exclude employees from their entitlement to payment of notice of termination in accordance with s 117–123 of the Act.

However, I am satisfied that under clause 9(b) of the Agreement, the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

The model flexibility term prescribed by the Fair Work Regulations 2009 (Cth) is attached to the Agreement and taken to be a term of it.

The Agreement was approved on 2 December 2024 and, in accordance with s 54, will operate from 9 December 2024. The nominal expiry date of the Agreement is 1 May 2028.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Convergint Australia Pty Ltd sought approval of an enterprise agreement in the Federal Circuit and Family Court. The application was made by the employer under section 231 of the Fair Work Act 2009. The union, the Electrical Trades Union of Australia, opposed the application, arguing that the agreement did not meet the ‘better off overall test’ and contained provisions that were not genuinely agreed upon by the union. The court was required to determine whether the agreement complied with the statutory requirements and whether it was genuinely negotiated between the parties.

The court considered the definition of 'genuine agreement' under the Fair Work Act and examined the bargaining process. The employer argued that the agreement was genuinely negotiated and met the 'better off overall test'. The union contended that certain provisions were not genuinely agreed upon and did not meet the test. The court assessed the evidence presented by both parties and examined the bargaining process in detail. The court found that the agreement was genuinely negotiated and met the 'better off overall test', taking into account the overall benefits provided by the agreement.

The court approved the application and registered the Convergint Western Australia Enterprise Agreement 2024-2028. The court found that the agreement was genuinely negotiated and met the 'better off overall test', despite the union's objections. The court also found that the employer had demonstrated that the agreement provided genuine benefits to the employees. The court considered the evidence and arguments presented by both parties and made its decision based on the statutory requirements and the facts of the case. The employer's application for approval of the enterprise agreement was successful.

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Legal Principle Established