Duracube Rewards Trust Pty Ltd

[2024] FWCA 2851

[2024] FWCA 2851

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

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

Duracube Rewards Trust Pty Ltd

(AG2024/2649)

DURACUBE ENTERPRISE AGREEMENT 2024

Manufacturing and associated industries
COMMISSIONER PLATT	ADELAIDE, 2 AUGUST 2024

Application for approval of the Duracube Enterprise Agreement 2024

1. An application has been made for approval of an enterprise agreement known as the Duracube Enterprise Agreement 2024 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act) by Duracube Rewards Trust Pty Ltd (the Applicant). The agreement is a single enterprise agreement.

1. The matter was allocated to my Chambers on 24 July 2024.

1. On 30 July 2024, I conducted a telephone conference with the parties to seek clarification about aspects of the Agreement and invited the Applicant to address these matters including through the provision of an undertaking.

1. There are two National Employment Standards (NES) issues that require comment:

·  Clause 8.6 provides that that the employer and their employees may agree to substitute a public holiday for another day. It is not clear if this clause permits substitution to occur by agreement between the employer and an individual employee or between the employer and a majority of employees. If it is the latter, this is inconsistent with s.115 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 individual employee.

·  Clause 11 provides that if an employee does not provide the required notice of termination, the employer may withhold monies due to the employee on termination. This clause may operate to reduces an employee’s entitlement to payment of NES entitlements upon termination.

1. Clause 2 of the Agreement acts as an effective NES precedence clause. 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 29 July 2024. The undertaking deals with the following topics:

·  The casual loading prescribed in Clause 4.4 forms part of a casual employees all purpose rate.

·  For the purposes of Clause 6.2, the hourly rate for junior apprentices and trainees is based on the Agreement rate contained in Schedule 1 and the percentage increase is based on changes to the Manufacturing and Associated Industries and Occupations Award 2020.

·  Despite Clause 6.3, any annualised salaries will be reviewed by the Applicant every 3 months to ensure the employee is being paid more than they would otherwise be entitled under the Agreement (which means the BOOT test will be met).

1. No bargaining representatives were appointed.

1. As the Agreement does not contain a flexibility term which meets the requirements of s.203 of the Act, the model flexibility term is 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 8 August 2028.

COMMISSIONER

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