Debra O'Mara T/A Sutton Tools

[2024] FWCA 2237

[2024] FWCA 2237

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

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

Debra O'Mara T/A Sutton Tools

(AG2024/1408)

SUTTON TOOLS PTY LTD MARYBOROUGH OPERATIONS ENTERPRISE AGREEMENT 2024

Manufacturing and associated industries
COMMISSIONER CONNOLLY	MELBOURNE, 18 JUNE 2024

Application for approval of the Sutton Tools Pty Ltd Maryborough Operations Enterprise Agreement 2024

1. An application has been made for approval of an enterprise agreement known as the Sutton Tools Pty Ltd Maryborough Operations Enterprise Agreement 2024 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act) by Debra O'Mara T/A Sutton Tools (the Applicant). The Agreement is a single enterprise agreement.

1. The matter was allocated to my Chambers on 6 May 2024.

1. The notification time for the Agreement under s.173(2) was 31 January 2024 and the Agreement was made on 24 April 2024.  Accordingly, the genuine agreement requirements the Agreement is to be assessed under are those applying after 6 June 2023 and the better off overall test (BOOT) is that applying on and from 6 June 2023. [1] 

1. On 17 May 2024, the Employer was invited to address aspects of the Agreement including through the provision of an undertaking.

1. In respect of the alleged Notice of Employee Representational Rights (NERR) deficiency, I do not believe that concerns identified regarding the voting for the approval of the Agreement had the effect of disenfranchising any employee who is covered by the proposed Agreement from participation in the bargaining process. In this regard, I note of the 38 employees who were eligible to vote, 20 voted, all of whom voted to approve the Agreement.  To further satisfy any concerns, I convened a conference on 12 June 2024, which both the Applicant and the AMWU (as the bargaining representative seeking to be covered by the Agreement) attended.  At this conference, both parties confirmed that there were no issues or concerns with the Agreement being genuinely made as required by paragraphs 15-19 of the Statement of Principles on Genuine Agreement.  I am satisfied this is the case. 

1. Furthermore, I am satisfied (taking into consideration s.188(5) of the Act and the decision in Huntsman Chemical Company Australia Pty Limited T/A RMAX Rigid Cellular Plastics & Others) that the procedural or technical error is minor and that the employees were not likely to have been disadvantaged, and accordingly, that there has been a genuine agreement.

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

·   Personal/Carers leave: Clause 5 (c) of the agreement provides that where an employee, or an immediate family member experiences domestic/family violence. In these circumstances Personal Leave may be used for attending court, legal appointments, arranging alternative accommodation or making alternative care arrangements for a dependant. It is noted that s. 106A of the Act provides for entitlements of 10 days of paid family and domestic violence leave in a 12-month period which factor in the above circumstances that are included in clause 5 (c) of the agreement. The agreement does not contain an effective NES precedence clause and is silent on family and domestic violence leave.

1. The Applicant has provided written undertakings, dated 22 May 2024, and a copy is attached in Annexure A. A copy of the undertaking has been provided to the bargaining representative(s) and I have sought their views in accordance with s.190(4) of the Act. The bargaining representative(s) did not express any view on the undertaking.

1. I am satisfied that the undertaking will not cause financial detriment to any employee covered by the Agreement and that the undertaking will not result in substantial changes to the Agreement, thus appearing to meet the requirements of s.190(3). The undertaking is taken to be a term of the Agreement.

1. The ““Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU)”, 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 this organisation.

1. I am satisfied that each of the requirements of ss.186, 187, 188, 190, 193 and 193A 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 31 March 2027.

COMMISSIONER

Annexure A

[1] The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) made a number of changes to enterprise agreement approval processes in Part 2-4 of the Fair Work Act. Those changes broadly commenced operation on 6 June 2023, subject to various transitional arrangements that included those to effect described above.

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