Cooper Penrose T/A Wvw Constructions Pty Ltd Trading As Penfab Steel

[2024] FWCA 836

[2024] FWCA 836

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Cooper Penrose T/A Wvw Constructions Pty Ltd Trading As Penfab Steel

(AG2024/414)

WVW CONSTRUCTIONS PTY LTD TRADING AS PENFAB STEEL ENTERPRISE AGREEMENT 2024

Manufacturing and associated industries
COMMISSIONER ALLISON	MELBOURNE, 8 MARCH 2024

Application for approval of the WVW Constructions Pty Ltd trading as Penfab Steel Enterprise Agreement 2024

1. An application has been made for approval of an enterprise agreement known as the WVW Constructions Pty Ltd trading as Penfab Steel Enterprise Agreement 2024 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Cooper Penrose T/A Wvw Constructions Pty Ltd Trading As Penfab Steel. The Agreement is a single enterprise agreement.

1. On 28 February 2024, my Chambers sent correspondence to the parties outlining several issues with the application and the Agreement. These were that:

• The signature page did not meet the requirements set out in regulation 2.06A of the Fair Work Regulations 2009 (the Regulations). I sought, and received, an amended signature page which was compliant with the Regulations.

• Clause 11(d) of the Agreement, relating to compassionate leave, was silent in relation to compassionate leave for stillbirth or miscarriage as provided by s.104(1)(b) and (c) of the Act. I sought a National Employment Standards (NES) precedence undertaking to resolve this issue. This undertaking was provided and is attached in Annexure A.

• Clause 13 of the Agreement, relating to consultation, does not allow for an employee to be represented, and does not require the employer to invite employees to give their views about the impact of a change, and does not require the employer to consider any views given by employees about the impact of a change. I noted that as this did not meet the requirements of s.205 of the Act, the model consultation term would be inserted into the Agreement.

1. I further note that the Applicant provided pre-emptive undertakings to the Commission, in relation to the extra week of annual leave granted to shiftworkers under the NES. A copy of this undertaking is attached in Annexure A.

1. 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. I am also satisfied that the more beneficial of the NES will prevail where this is an inconsistency between the Agreement and the NES. The undertakings are taken to be a term of the Agreement.

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. Pursuant to s.205(2) of the Act, the model consultation term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.

1. The Agreement is approved and, in accordance with s.54 of the Act, will operate from 15 March 2024. The nominal expiry date of the Agreement is 8 March 2028.

COMMISSIONER

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Annexure A