GWA Group Limited
[2024] FWCA 1735
•10 MAY 2024
| [2024] FWCA 1735 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.185—Enterprise agreement
GWA Group Limited
(AG2024/1272)
GWA NSW DISTRIBUTION ENTERPRISE AGREEMENT 2024
| Storage services | |
| DEPUTY PRESIDENT GRAYSON | SYDNEY, 10 MAY 2024 |
Application for approval of the GWA NSW DISTRIBUTION ENTERPRISE AGREEMENT 2024
Introduction
GWA Group Limited (the Employer) has made an application for approval of an enterprise agreement known as the GWA NSW Distribution Enterprise Agreement 2024 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement.
National Employment Standards (NES) precedence term
Clause 30.10 provides that when an employee is taking personal or carer’s leave, an employee is required to provide a medical certificate, statutory declaration or such other evidence to a standard “satisfactory to the Company, that the employee were unable to work because of injury or personal illness” [with emphasis added]. This appears to be more restrictive than s.107 of the Act, which provides that the standard of satisfaction required by personal or carer’s leave evidence is that of “a reasonable person”. Section 107(5) provides that an enterprise agreement may include terms relating to the kind of evidence that an employee must provide in order to be entitled to personal or carer’s leave. As a result, the requirement within the clause that an employee provide a medical certificate, statutory declaration or such other evidence is permissible, but the standard of satisfaction according to the Employer may not be. Accordingly, this clause may be inconsistent with the National Employment Standards (NES) at s.107 of the Act.
Clause 17.5 of the Agreement is silent as to the entitlement of an employee who has abandoned their employment to be paid notice of termination. Accordingly, this may be inconsistent with the NES at ss.117 to 123 of the Act.
I note that in accordance with the NES precedence term in Clause 6.2 of the Agreement, these clauses will be read and interpreted in conjunction with the NES.
Section 190 Undertakings
The employer 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.
Section 186, 187, 188 and 190
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.
Section 183 Bargaining Representatives
The United Workers’ Union (UWU) being a bargaining representative for the Agreement, has given notice under s.183 of the Act that it wants the Agreement to cover it.
In accordance with s.201(2), I note that the Agreement covers the UWU.
Approval
The Agreement is approved and, in accordance with s.54 of the Act, will operate from 17 May 2024. The nominal expiry date of the Agreement is 27 February 2027.
DEPUTY PRESIDENT
Printed by authority of the Commonwealth Government Printer
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ANNEXURE A
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