Hastings Deering (Australia) Limited

[2021] FWCA 6740

[2021] FWCA 6740

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Hastings Deering (Australia) Limited
(AG2021/7779)

HASTINGS DEERING (AUSTRALIA) LIMITED ENTERPRISE AGREEMENT 2021

Vehicle industry
DEPUTY PRESIDENT ASBURY	BRISBANE, 17 NOVEMBER 2021

Application for approval of the Hastings Deering (Australia) Limited Enterprise Agreement 2021

[1] Hastings Deering (Australia) Limited (the Applicant) applies to the Fair Work Commission (the Commission) for approval of an enterprise agreement known as the Hastings Deering (Australia) Limited Enterprise Agreement 2021 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement.

[2] Undertakings were provided by the Applicant in response to concerns the Commission held in relation to the operation of certain clauses and whether the Agreement passes the better off overall test. A copy of the Undertakings is attached as Annexure A to this decision. I am satisfied that the effect of accepting the Undertakings is not likely to:

(a) cause financial detriment to any employee covered by the Agreement; or

(b) result in substantial changes to the Agreement.

[3] The views of each person or organisation the Commission knows is a bargaining representative for the Agreement have been sought in relation to the Undertakings. Pursuant to subsection 190(3) of the Act, I accept the Undertakings. In accordance with s.201(3) of the Act, a copy of the undertakings will be attached to the Agreement and forms part of the Agreement.

[4] I observe that the following clauses may be inconsistent with the National Employment Standards (NES):

•  Clause 15.4 – Evidence for Personal Leave;

•  Clause 18.1(a) – Compassionate Leave;

•  Clause 18.1(e) – Compassionate Leave;

•  Clause 19(d) – Public Holidays;

•  Clause 25.2(b) – Notice of termination by an Employee; and

•  Clause 26.6(c)(iv) – Redundancy Payment.

[5] I note that the Applicant has given an undertaking that the Agreement will be read and interpreted in conjunction with the NES and that where there is an inconsistency between a provision of the Agreement and the NES, and the NES provides a greater benefit, the NES provision will apply to the extent of the inconsistency. On this basis, I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES. I also note that by virtue of s. 55 of the Act, an enterprise agreement must not exclude the NES or any provisions of the NES and s. 56 provides that a term of an enterprise agreement has no effect to the extent that it contravenes s. 55.

[6] Clause 1.5 of the Agreement contained an error in that the nominal expiry date was omitted from the clause, the effect being that the Agreement does not contain a nominal expiry date. This is inconsistent with s. 186(5) of the Act which requires that an enterprise agreement specify a date as its nominal expiry date that is not more than four years after the day on which the Commission approves the agreement. Pursuant to s. 190(1)(b) of the Act the Commission can accept an undertaking that addresses a concern that an enterprise agreement does not meet requirements in s. 186. Accordingly, I accept the undertaking provided by the Applicant in relation to this matter and I am also satisfied that this will not cause financial detriment to any employee covered by the Agreement or result in substantial changes to the Agreement.

[7] The Agreement does not contain a flexibility term that is consistent with the requirements in s.205 of the Act. Pursuant to s.205(2) of the Act, the model flexibility term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.

[8] I am satisfied, on the basis of information set out in the Form F16 Application for approval of an enterprise agreement, the Form F17 Employer’s declaration in support of an application for approval of the Agreement and responses to requests for further information provided by the Applicant, that each of the requirements of ss. l86, 187 and 188 as are relevant to this application for approval have been met. The Agreement does not cover all of the employees of the employer, however, taking into account s.186(3) and (3A), and on the basis of the information contained in the Form F17, I am satisfied that the group of employees covered by the Agreement was fairly chosen.

[9]  The Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union known as the Australian Manufacturing Workers’ Union and the Construction, Forestry, Maritime, Mining and Energy Union 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) of the Act I note that the Agreement covers these organisations.

[10] The Agreement is approved in accordance with s.54 of the Act and will operate from 24 November 2021. The nominal expiry date of the Agreement is 12 September 2024.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<AE513928  PR735895>

Annexure A