Ductmakers Pty Ltd T/A Ductmakers Pty Ltd
[2024] FWCA 3272
•16 SEPTEMBER 2024
| [2024] FWCA 3272 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement
Ductmakers Pty Ltd T/A Ductmakers Pty Ltd
(AG2024/3179)
| COMMISSIONER REDFORD | MELBOURNE, 16 SEPTEMBER 2024 |
Application for approval of the Ductmakers Pty Ltd Enterprise Agreement 2024-2027
An application has been made for approval of an enterprise agreement known as the Ductmakers Pty Ltd Enterprise Agreement 2024-2027 (the Agreement). The application was made pursuant to s 185 of the Fair Work Act 2009 (Cth) (the Act). It has been made by Ductmakers Pty Ltd (Ductmakers).
Genuine Agreement
The Notice of Employee Representational Rights (NERR) distributed to employees by Ductmakers on 6 June 2024 appears to make a reference to a different name for the Agreement to that which was eventually made. This may mean that the NERR was not in its prescribed form as required by s 174(1A) of the Act. However, I am satisfied that this is a minor or technical error, and employees covered by the Agreement were not likely to have been disadvantaged by it.
Section 188(1) of the Act requires the Commission to take into account the Statement of Principles on Genuine Agreement (Statement of Principles) made under s 188B in determining whether it is satisfied that an enterprise agreement has been genuinely agreed to by the employees covered by the agreement. In relation to this question, two matters arose about which I sought further information from Ductmakers:
a. Paragraph 5(b) of the Statement of Principles provides that employees who are entitled to vote on the proposed agreement should be given a full copy of any other material incorporated by reference in the agreement, by giving employees, or ensuring employees have access to, a hard copy of the material, or providing it by electronic means or a combination of these methods. Ductmakers confirmed that throughout the period employees had access to hard copies of documents such as the Manufacturing and Associated Industries and Occupations Award 2020 (the Award) and copies of what was described as the “old” EBA and “new” EBA. Ductmakers advised that there were multiple hard copies of these documents left in the factory lunchroom on a daily basis.
b. Paragraph 15 of the Statement of Principles provides that employees should be given a reasonable opportunity to vote on a proposed enterprise agreement in a free and informed manner which includes using a voting process that ensures the vote of each employee is not disclosed to or ascertainable by an employer. In this instance, voting for the agreement occurred using a “show of hands” method. I sought further information from the employer about whether this vote was conducted in such a way as ensured the vote of each employee was not disclosed to or ascertainable by the employer. Ductmakers advised that the vote was done in the privacy of the factory lunchroom which is a closed room at the end of the relevant building, in the presence of the Union representative and the outcome then verbally given to the Human Resources Coordinator by way of meeting after the vote had occurred.
I sought the views of the Australian Workers Union (AWU) in relation to these responses, who advised that it supports the approval of the agreement.
Taking into account Ductmakers’ response, and also the views of the AWU (in the context paragraph 19 of the Statement of Principles) I consider that the Agreement has been genuinely agreed to within the meaning of s 188(5)(a) of the Act.
BOOT Test
An issue was raised by the Commission in relation to trainee rates of pay under the agreement. The Applicant has provided written undertakings in relation to that matter and a copy of the undertakings is attached in Annexure A. Pursuant to s 190(4) of the Act the views of the AWU were sought in relation to those undertakings. In accordance with s 191(1) of the Act, the undertakings are taken to be a term of the Agreement.
The National Employment Standards
Clause 8(a) of the Agreement provides that the National Employment Standards (NES) applies to employees covered by the agreement except where the agreement provides a more favourable outcome (NES precedence clause). On this basis, I am satisfied that the apparent inconsistencies with the NES outlined below do not prevent the approval of this agreement:
Clause 14.2(b) of the Agreement provides for the withholding of monies in circumstances where an employee has given insufficient notice of resignation. Clause 14.2(b) provides that in these circumstances, the employer “has the right to withhold monies due to the employee to a maximum amount equal to the amount the employee would have received for the period of notice not given”. This clause appears to permit the employer to deduct monies from employee’s entitlements under the NES (such as notice of termination, accrued but unused annual leave or long service leave on termination). Accordingly, this clause may be inconsistent with Chapter 2 Part 2.2 Division 2 of the Act however, when read in conjunction with the NES precedence clause (clause 8(a)) will have no effect to the extent of any inconsistency.
Clause 4.2 appears to provide for casual conversion. The provisions do not appear to be consistent with s.66B of the Act. However, when read in conjunction with the NES precedence clause (clause 8(a)) will have no effect to the extent of any inconsistency.
Clause 38(1)(d) of the Agreement provides that that the employer and a majority of affected employees may agree to substitute a public holiday for another day. This appears to be inconsistent with s 115(3) of the Act, which provides that the substitution of a public holiday with another day may only occur by agreement between the employer and an employee, rather than a majority of employees however, when read in conjunction with the NES precedence clause (clause 8(a)) will have no effect to the extent of any inconsistency.
Mandatory terms
Clause 43.1 of the agreement provides for a delegate's rights term that is more favourable than the delegates rights term which applies in the Award, when read in conjunction with clause 40A of the Award (as is required by clause 7 and clause 43 of the Agreement).
Section 202 of the Act provides that if an enterprise agreement does not include a flexibility term, the model flexibility term prescribed by Schedule 2.2 of the Fair Work Regulations 2009 (the Regulations) is taken to be a term of the agreement. Section 203 of the Act provides that a flexibility term must meet the requirements it sets out, including, relevantly, that the flexibility term must require the employer to ensure that a copy of any individual flexibility arrangement agreed to under the term must be given to the employee within 14 days after it is agreed to. As clause 9(4) of the agreement provides that a copy of an individual flexibility agreement is to be given to an employee within 21 days, not 14 days as required by s 203(7)(b) of the Act, the flexibility term provided for at clause 9(4) does not meet the requirements set out in that section of the Act, and the model flexibility term prescribed by 2.2 of the Regulations is taken to be a term of the agreement.
Clause 10.1 of the Agreement provides that the “model consultation clause” will be applied and refers to Schedule 2.3 of the Regulations. To this end, it should be noted that the model consultation clause requires consultation in relation to matters including changes to regular roster and hours of work.
Consideration
Taking into account the foregoing, I am satisfied that each requirement of ss 186, 187, 188 and 190 as are relevant to this application for approval have been met. For the purposes of the better off overall test, I have had regard to each of the matters set out in ss 193A(2) – (7).
The AWU, a bargaining representative for the Agreement, supports the approval of the Agreement and has given notice under s 183 of the Act that it wants to the Agreement to cover it. In accordance with s 201(2) of the Act I note that the Agreement covers the AWU.
The Agreement is approved and, in accordance with s 54 of the Act, will operate from 23 September 2024.
COMMISSIONER
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