Den Ouden Contracting Pty Ltd

[2024] FWCA 954

[2024] FWCA 954

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

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

Den Ouden Contracting Pty Ltd

(AG2024/571)

DEN OUDEN CONTRACTING PTY LTD & THE AUSTRALIAN WORKERS' UNION WIND FARMS AGREEMENT 2024

Building, metal and civil construction industries
COMMISSIONER CONNOLLY	MELBOURNE, 18 MARCH 2024

Application for approval of the Den Ouden Contracting Pty Ltd & The Australian Workers' Union Wind Farms Agreement 2024

1. An application has been made for approval of an enterprise agreement known as the Den Ouden Contracting Pty Ltd & The Australian Workers' Union Wind Farms Agreement 2024 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act) by Den Ouden Contracting Pty Ltd (the Applicant). The Agreement is a single enterprise agreement.

1. The matter was allocated to my Chambers on 8 March 2024.

1. The notification time for the Agreement under s.173(2) was 2 February 2024 and the Agreement was made on 1 March 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. In respect of the alleged Notice of Employee Representational Rights (NERR) deficiency I do not believe that the use of the pre-6 June 2023 version of the NERR had the effect of disenfranchising any employee who is covered by the proposed Agreement from participation in the bargaining process. 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/Carer’s Leave: Cl 59.5 of the Agreement states that the employee must notify their employer of the reason for their absence within 24 hours of the absence. This appears inconsistent with the NES which states the employee must notify the employer as soon as reasonably practicable.

1. Clause 7 of the Agreement acts as an effective NES precedence clause, in that it states that “The National Employment Standards (NES) apply to all employees as a minimum standard. Where there is an inconsistency between the NES and a clause of this agreement, the NES will apply and the clause of the agreement will not apply, except to the extent that the clause of the agreement provides for a more beneficial outcome for employees than the NES”. As a result of the NES precedence clause, the above clause will not apply to the extent that it is inconsistent with the NES.

1. The “The Australian Workers’ Union”, 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 28 February 2025.

COMMISSIONER

[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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