HIFraser Pty Ltd
[2024] FWCA 886
•11 MARCH 2024
| [2024] FWCA 886 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.185—Enterprise agreement
HIFraser Pty Ltd
(AG2024/311)
HIFRASER ENTERPRISE AGREEMENT 2024
| Design, manufacturing and engineering industries | |
| DEPUTY PRESIDENT SLEVIN | SYDNEY, 11 MARCH 2024 |
Application for approval of the HIFraser Enterprise Agreement 2024
An application has been made for approval of an enterprise agreement known as the HIFraser Enterprise Agreement 2024 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act) by HIFraser Pty Ltd. The Agreement is a single enterprise agreement.
When approving agreements the Commission is required to be satisfied that the agreement meets the better off overall test (BOOT). The test is found in s.193 of the Act and it is to be applied in accordance with s.193A. Under s.193 the Commission must be satisfied, as at the time the application for approval was made, that each award covered employee, and each reasonably foreseeable employee, for the agreement would be better off overall if the agreement applied to the employee than the relevant modern award. Here the relevant awards are the Professional Employees Award 2020, Manufacturing and Associated Industries and Occupations Award 2020, and Clerks—Private Sector Award 2020. In applying the test, the Commission is required by s.193A to make a global assessment of whether each employee would be better off having regard to the terms of the agreement which would be more beneficial than the award and the terms which would be less beneficial. In making that assessment, the Commission may have regard to the patterns of work that are reasonably foreseeable at the time of the application.
In considering whether the BOOT was met I raised a concern that various terms in the Agreement could be less beneficial depending on the work patterns applied at the workplace. Clause 4.4 provides that, for the avoidance of doubt, clause 4.3 does not apply to casual employees to whom the underpinning Award will continue to apply. As clause 4.3 and 4.4 do not expressly incorporate the aligned Modern Awards for casual employees it appears unclear if Award entitlements apply where the Agreement is silent (for casuals). As such I was concerned casual employees may not be better off overall under the Agreement. The Applicant addressed this concern by providing an undertaking to the effect that where the Agreement is silent or there is an inconsistency between the terms of the Agreement and the terms of the Award, then the terms of the Award will apply.
Further, I raised a concern in relation to clause 5.2.2 of the Agreement relating to how the span of working hours for part-time employees is agreed upon. In response the Applicant provided an undertaking.
Clarity was also sought as to whether the allowances provided for at clause 10 which appear to be more limited in number than those found in the Awards raise a BOOT concern. In response the Applicant submitted that many of the allowances listed in the Awards either never apply to the Applicant’s workforce due to their nature or due to the way the Applicant’s business operates or would, potentially, only infrequently apply. The Applicant submits that the Agreement only provides for allowances that are actually payable in practice according to the nature of its business and the pattern of work. To the extent that any allowances would infrequently apply, the Applicant submits that the higher base rates of pay under the Agreement more than compensate for the loss of an infrequent or sporadic allowance.
Given the undertakings and having regard to s.193A(6), and in particular the patterns of work of the employees covered by the Agreement, I am satisfied that the BOOT is met. I note that should the work patterns change, an application under s.227A is available for a reconsideration of the BOOT. A copy of the undertaking is attached in Annexure A. I am satisfied that the undertaking will not cause financial detriment to any employee covered by the Agreement and it will not result in substantial changes to the Agreement. Pursuant to s.201(3), the undertaking is taken to be a term of the Agreement.
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. The Agreement does not cover all of the employees of the employer, however, taking into account the factors in sections 186(3) and (3A) I am satisfied that the group of employees was fairly chosen.
The Agreement was approved on 11 March 2024 and, in accordance with s.54, will operate from 18 March 2024. The nominal expiry date of the Agreement at clause 3.1 is 11 March 2028.
DEPUTY PRESIDENT
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ANNEXURE A
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