Decipha Pty Ltd T/A Decipha Pty Ltd

[2022] FWCA 444

[2022] FWCA 444

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Decipha Pty Ltd T/A Decipha Pty Ltd
(AG2021/8938)

DECIPHA ENTERPRISE AGREEMENT 2021

Graphic Arts
DEPUTY PRESIDENT EASTON	SYDNEY, 10 FEBRUARY 2022

Application for approval of the Decipha Enterprise Agreement 2021.

[1] Decipha Pty Ltd (the Employer) has made an application for the approval of the Decipha Enterprise Agreement 2021 (the Agreement). The application was made under s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement.

[2] The Employer has provided written undertakings, a copy of which are attached as Annexure A to this decision. The undertakings can be accepted under s.190 of the Act because I am satisfied that they will not cause financial detriment to any employee covered by the Agreement and will not result in substantial changes to the Agreement. The undertakings are taken to be a term of the agreement pursuant to s.191 of the Act.

[3] Subject to the Employer’s undertakings, I am satisfied that each relevant requirement in sections 186, 187, 188 and 190 of the Act has been met.

[4] Pursuant to s.202(4) of the Act, the model flexibility term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.

[5] I note that the following clauses are potentially inconsistent with the National Employment Standards (NES):

● Clause 16.1.3 – Termination

● Clause 16.4.2 – Termination – Notice of termination by an Employee

● Clauses 17.6 and 17.8 – Redundancy

● Clause 32.2 – Substitute Holidays

● Clause 33.5.1 and 33.5.5 – Carer’s Leave

[6] Noting the undertaking, submissions and the NES precedence clause at Clause 5.1, I am satisfied that the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

[7] The Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) was a bargaining representative for the Agreement and has given notice under s.183 of the Act that it wants the Agreement to cover it. In accordance with s.201(2) I note that the Agreement covers the CEPU.

[8] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 17 February 2022. The nominal expiry date of the Agreement is 17 February 2025.

DEPUTY PRESIDENT

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Annexure A