Entier Australia Pty Ltd

[2024] FWCA 493

[2024] FWCA 493

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Entier Australia Pty Ltd

(AG2024/73)

ENTIER AUSTRALIA PTY LTD CATERING GREENFIELDS AGREEMENT 2024

Oil and gas industry
COMMISSIONER LIM	PERTH, 6 FEBRUARY 2024

Application for approval of the Entier Australia Pty Ltd Catering Greenfields Agreement 2024

1. An application has been made for approval of a greenfields agreement known as the Entier Australia Pty Ltd Catering Greenfields Agreement 2024 (the Agreement). The application was made by Entier Australia Pty Ltd pursuant to s 185 of the Fair Work Act 2009 (Cth) (the Act).

1. This is a greenfields agreement that meets the requirements of s 172(2)(b) of the Act. I am satisfied that each of the requirements of ss 186 and 187 of the Act as are relevant to this application for approval have been met.

1. In accordance with s 187(5)(a) of the Act, I am satisfied that the Australian Workers’ Union (the AWU) is entitled to represent the industrial interests of a majority of employees who will be covered by the Agreement in relation to work that is to be performed under it. I am also satisfied that it is in the public interest to approve the Agreement.

1. Pursuant to s 53(2)(b) of the Act, I note the Agreement was made with the organisation and that the Agreement covers it.

1. Pursuant to s 201(2A) of the Act I note the Agreement covers the AWU.

1. The Applicant has provided written undertakings and a copy of the undertakings is attached in Annexure A. In accordance with s 191(1) of the Act, the undertakings are taken to be a term of the Agreement.

1. I note that clause 28.2 of the Agreement provides that in the case of termination, if employees do not give notice, the Employer may withhold from any wages due, an amount not exceeding the amount the employee would have been paid under the Agreement in respect of the period of notice. This clause appears to permit the Employer to withhold monies owing to the employee under the National Employment Standards (NES). This raises the issue that this clause may be inconsistent with Chapter 2, Part 2.2, Division 2 of the Act.

1. I note that clause 16.2(b) of the Agreement provides that casual workers, including those engaged by a labour hire company, who are employed on a regular basis for a period of longer than 12 months, will be offered permanent employment. This is inconsistent with s 66B(1)(b) of the Act, which provides that an employer must offer conversion after 12 months, if during at least 6 months the employee has worked a regular pattern of hours on an ongoing basis which they could continue to work as a full or part time employee.

1. However, noting clause 2.5 of the Agreement, I am satisfied the more beneficial entitlements of the NES will prevail where there are inconsistencies between the Agreement and the NES. I also note the Applicant’s undertaking with regards to these clauses.

1. The Agreement is approved and, in accordance with s 54 of the Act, will operate from 13 February 2024. The nominal expiry date of the Agreement is 11 September 2027.

COMMISSIONER

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<AE523435  PR770934>

ANNEXURE A