Gladstone Area Group Apprentices Ltd

[2023] FWCA 1619

[2023] FWCA 1619

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Gladstone Area Group Apprentices Ltd

(AG2023/1330)

APPRENTICES AND TRAINEES QUEENSLAND (CALLIDE MINE) ENTERPRISE AGREEMENT 2023

Coal industry
DEPUTY PRESIDENT DOBSON	BRISBANE, 5 JUNE 2023

Application for approval of the Apprentices and Trainees Queensland (Callide Mine) Enterprise Agreement 2023

1. An application has been made for approval of an enterprise agreement known as the Apprentices and Trainees Queensland (Callide Mine) Enterprise Agreement 2023 (the Agreement). The Application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Gladstone Area Group Apprentices Limited T/A Apprentices and Trainees Queensland (ATQLD) (the Applicant). The Agreement is a single enterprise agreement.

1. The Notice of Employee Representational Rights (NERR) distributed to employees appears to use the incorrect title of the Agreement, however, I am satisfied that the Agreement would have been genuinely agreed to but for the minor procedural departure from the prescribed form requirements of the NERR under s.174(1A) of the Act and that the employees covered by the Agreement were not likely to have been disadvantaged by this. Accordingly, I exercise the discretion conferred by s.188(2) of the Act.

1. The Applicant has provided written undertakings. 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.

1. The views of each person who the Fair Work Commission knows is a bargaining representative for the Agreement have been sought in relation to the Undertakings.

1. Pursuant to s.190(3) of the Act, I accept the undertakings.

1. Subject to the undertakings referred to above, I am satisfied that each requirement of ss186, 187 and 188 as are relevant to this application for approval have been met. The undertakings are taken to be a term of the Agreement.

1. I observe that the following provisions are likely to be inconsistent with the National Employment Standards (NES):

·   Clause 183(c) – Deduction/Withholdng of monies due to the employee under the NES on termination

Clause 18.3(c) provides that if the employee fails to give the required notice of termination to the employer, the employer has the right to withhold from an employee’s termination pay an amount that is equal to the period of notice not given. It is noted that Clause 18.3(c) does not appear to limit the source of monies which may be deducted. The effect of this is that this clause appears to permit the employer to withhold monies owing to the employee under the NES (such as accrued but unused annual leave or long service leave on termination). This raises the issue that Clause 18.3(c) may be inconsistent with Chapter 2 Part 2.2 Division 2 of the Act.

However, noting clause 4.2 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.

1. The Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU - ETU) and the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union known as the Australian Manufacturing Workers’ Union (AMWU) have lodged a Form F18 statutory declaration giving notice under s.183 of the Act that they want the Agreement to cover them In accordance with s.201(2) of the Act, I note the Agreement covers the CEPU – ETU and the AMWU.

1. The Agreement is approved and will operate in accordance with s.54 of the Act. The nominal expiry date of the Agreement is 4 June 2027.

DEPUTY PRESIDENT

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