Fenner Dunlop Australia Pty Ltd T/A Fenner Conveyors Australia

[2023] FWCA 3118

[2023] FWCA 3118

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Fenner Dunlop Australia Pty Ltd T/A Fenner Conveyors Australia

(AG2023/3177)

FENNER CONVEYORS (FOOTSCRAY MAINTENANCE) ENTERPRISE AGREEMENT 2023

Manufacturing and associated industries
DEPUTY PRESIDENT MILLHOUSE	MELBOURNE, 2 OCTOBER 2023

Application for approval of the Fenner Conveyors (Footscray Maintenance) Enterprise Agreement 2023

1. An application has been made for approval of an enterprise agreement known as the Fenner Conveyors (Footscray Maintenance) Enterprise Agreement 2023 (Agreement). The application was made pursuant to s 185 of the Fair Work Act 2009 (Cth) (Act). It has been made by Fenner Dunlop Australia Pty Ltd T/A Fenner Conveyors Australia (Employer). The Agreement is a single-enterprise agreement.

1. The notification time for the Agreement precedes 6 June 2023. Accordingly, the legislative changes to the Act in relation to the genuine agreement provisions which commenced on 6 June 2023 do not apply to this approval application.[1] However, the Agreement was made after 6 June 2023. Accordingly, the amendments to the better off overall test have commenced and so apply to this approval application.[2]

1. The Agreement title in the Notice of Employee Representational Rights (NERR) is listed as “Fenner Dunlop (Footscray Maintenance) Enterprise Agreement 2021” whilst the Agreement title is “Fenner Conveyors (Footscray Maintenance) Enterprise Agreement 2023.” I am satisfied that:

(a)   this constitutes a minor procedural or technical error; and

(b)   employees covered by the Agreement were not likely to have been disadvantaged by the error.[3]

1. The Employer has provided written undertakings. A copy of the undertakings is attached in Annexure A. I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement and that the undertakings will not result in substantial changes to the Agreement. The undertakings are taken to be a term of the Agreement.

1. Subject to the undertakings referred to above, I am satisfied that each of the requirements 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 note that I have had regard to each of the matters in s 193A(2)-(6), and I observe no views were expressed for the purposes of s 193A(6A).

1. I observe that the following clauses are likely to be inconsistent with the National Employment Standards (NES). However, noting clause 2.3.4 of the Agreement, I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES:

·     Clause 37.5 (a) provides that by agreement between the Employer and majority of Employees covered by the agreement, an alternative day may be taken as the public holiday instead of any of the prescribed days. This is inconsistent with s 115(3) of the Act, which provides that substitution of a public holiday may only be between an individual employee and the employer.

· Clause 16.3 provides that termination of employment by abandonment operates from the date of the last attendance at work or the last day’s absence in respect of which consent was granted, or the date of the last absence in respect of which notification was given to the Employer, whichever is later. However, in such circumstances an employee is entitled to payment of notice of termination in accordance with ss 117–123 of the Act,^[4] and the Agreement fails to recognise this entitlement.

1. The “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU), and the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia being bargaining representatives for the Agreement, have given notice under s 183 of the Act that they want the Agreement to cover them. In accordance with s 201(2) I note that the Agreement covers these organisations.

1. The Agreement is approved and, in accordance with s 54 of the Act, will operate from 9 October 2023. The nominal expiry date of the Agreement is 30 June 2026.

DEPUTY PRESIDENT

Annexure A

[1] The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Amending Act) commenced operation with respect to the genuine agreement provisions and the better off overall test provisions of the Act on 6 June 2023. However, in relation to the genuine agreement provisions, Division 11 of Part 26 of the Amending Act provides that Part 2-4 of the Act continues to apply, as if the amendments had not been made, in relation to any proposed enterprise agreement for which the notification time occurs before 6 June 2023.

[2] Division 12 of Part 26 of the Amending Act provides that the amendments to the better off overall test apply in relation to enterprise agreements made on and after 6 June 2023

[3] Huntsman Chemical Company Australia Pty Limited T/A RMAX Rigid Cellular Plastics & Others[2019] FWCFB 318

[4] Bienias v Iplex Pipelines Australia Pty Limited[2017] FWCFB 38 at [58]

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