Coregas Pty Ltd

[2023] FWCA 2225

[2023] FWCA 2225

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

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

Coregas Pty Ltd

(AG2023/2242)

COREGAS OPERATIONS ENTERPRISE AGREEMENT (ADELAIDE) 2023

Manufacturing and associated industries
COMMISSIONER PLATT	ADELAIDE, 20 JULY 2023

Application for approval of the Coregas Operations Enterprise Agreement (Adelaide) 2023

1. An application has been made for approval of an enterprise agreement known as the Coregas Operations Enterprise Agreement (Adelaide) 2023 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act) by Coregas Pty Ltd (the Applicant). The agreement is a single enterprise agreement.

1. The matter was allocated to my Chambers on 12 July 2023.

1. There is one National Employment Standard (NES) issue that requires comment:

·  Clauses 6.14, 11.8, 11.12 & 12.4 of the Agreement requires employees to notify the Applicant no later than 1 hour prior to the time they are required to commence ordinary working hours (except in extraordinary circumstances where it is not possible to do so) of their inability to attend work. This appears inconsistent with s.107(2)(a) of the Act which states that notice must be given to the employer as soon as practicable (which may be a time after the leave has started).

1. The Applicant’s undertaking inserts an effective NES precedent clause into the Agreement. As a result, the above clauses will not apply to the extent they are inconsistent with the NES.

1. The Applicant has submitted an undertaking in the required form dated 14 July 2023. The undertaking deals with the following topics:

·  The Applicant has inserted a National Employment Standards (NES) precedence clause.

·  Any deduction made pursuant to clause 6.11 will be no more than 1 weeks wages.

·  Despite clause 8.1, employees will only be rostered to work up to 8 ordinary hours on each day or shift.

·  Despite clause 6.1(b), a part time employee will be paid at the applicable overtime rate when they work additional hours in excess of their agreed hours.

·  An employee will be paid at the rate of 150% of the ordinary hourly rate for the first 3 hours and 200% of the ordinary hourly rate thereafter for each shift when:

·  The employee’s rostered ordinary hours would constitute an afternoon shift pursuant to clause 33.2 of the Manufacturing and Associated Industries and Occupations Award 2020 or clause 22.1 of the Road Transport and Distribution Award 2020; and

·  The employee is not required to work those hours for at least 5 consecutive shifts.

1. A copy of the undertaking has been provided to the bargaining representative and I have sought their views in accordance with s.190(4) of the Act. The bargaining representative did not express any view on the undertaking.

1. The undertaking appears to meet the requirements of s.190(3) of the Act and I have accepted it. As a result, the undertakings are taken to be a term of the Agreement.

1. I am satisfied that each of the requirements of ss.186, 187, 188 and 190 of the Act as are relevant to this application for approval have been met.

1. The Agreement is approved and, in accordance with s.54 of the Act, will operate from 7 days after the date of approval of the Agreement. The nominal expiry date is 30 June 2026.

COMMISSIONER

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