Fenner Dunlop Australia Pty Ltd T/A Fenner Dunlop Engineered Conveyor Solutions

[2014] FWC 6189

[2014] FWC 6189

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Fenner Dunlop Australia Pty Ltd T/A Fenner Dunlop Engineered Conveyor Solutions
(AG2014/7325)

COMMISSIONER RYAN MELBOURNE, 5 SEPTEMBER 2014

Application for approval of the Fenner Dunlop - Maintenance (Footscray) Enterprise Agreement 2014.

[1] An application has been made by Fenner Dunlop Australia Pty Ltd for approval of the Fenner Dunlop - Maintenance (Footscray) Enterprise Agreement 2014 (the Agreement).

[2] The Agreement contains clause 32.4 which states:

“Notwithstanding s.88 of the Act, if an employer has genuinely tried to reach agreement with an employee as to the timing of taking annual leave, the employer can require the employee to take annual leave by giving not less than four weeks' notice of the time when such leave is to be taken if:

(a) at the time the direction is given, the employee has four weeks or more of annual leave accrued; and

(b) the amount of annual leave the employee is directed to take is less than or equal to a quarter of the amount of leave accrued.”

[3] The issue raised by clause 32.4 is almost identical to a matter considered by me in Metalform Structures Pty Ltd [2014] FWC 5439.

[4] Clause 32.4 of the Agreement contains a term which does not meet the requirements of s.93(3) because the requirement to take annual leave in clause 32.4 is not reasonable.

[5] Therefore clause 32.4 is a term of the Agreement which contravenes s.55(2).

[6] Section 186(2)(c) requires that the FWC must be satisfied that the terms of the agreement do not contravene s.55 before the FWC is permitted to approve an enterprise agreement.

[7] The requirement in s.186(2)(c) cannot be met in this instance and I must not approve the Agreement.

[8] The application is dismissed.

COMMISSIONER

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