Icon Distribution Investments Limited and Jemena Networks (ACT) Pty Ltd T/A ActewAGL Distribution

[2020] FWCA 4353

[2020] FWCA 4353

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Icon Distribution Investments Limited and Jemena Networks (ACT) Pty Ltd T/A ActewAGL Distribution
(AG2020/2098)

ACTEWAGL (RETAIL/CORPORATE) ENTERPRISE AGREEMENT 2020

Electrical power industry
DEPUTY PRESIDENT CLANCY	MELBOURNE, 18 AUGUST 2020

Application for approval of the ActewAGL (Retail/Corporate) Enterprise Agreement 2020.

[1] An application has been made for the approval of an enterprise agreement known as the ActewAGL (Retail/Corporate) Enterprise Agreement 2020 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Icon Distribution Investments Limited and Jemena Networks (ACT) Pty Ltd T/A ActewAGL Distribution (the Applicant). The Agreement is a single enterprise agreement.

[2] The Agreement does not cover all of the employees of the Applicant, however, taking into account the factors in s.186(3) and s.186(3A), I am satisfied that the group of employees was fairly chosen.

[3] I note that Clause 57.2 of the Agreement purports to authorise deductions to be made from employee pay if an employee fails to give the amount of notice of termination required by clause 56.1 of the Agreement and in particular, authorises the withholding of any leave entitlements that would have accrued during the part of the notice period forgone. Further, Clause 25.3 provides that in the case of overpayment or expense incurred by an employee outside of entitlement, any debt not repaid in full at the time of termination will be deducted from the employee’s final pay. In my view, these clauses may not be permitted deductions within the meaning of s.324 of the Act and, pursuant to s.326 of the Act, are likely to have no effect to the extent that they are not permitted deductions. However, notwithstanding my views on that, it is not a matter to which I am to have regard in terms of whether or not the Agreement should be approved and does not represent a barrier to the approval of the Agreement.

[4] I have been advised by the Applicant that there is a typographical error in the Table of Contents of the Agreement, such that clauses 33 to 69 of the Agreement have been incorrectly numbered. Noting it was and remains the intention of the parties to the Agreement that the Table of Contents mirror the numbering of the clauses in the Agreement, I will correct the Table of Contents of the Agreement pursuant to s.586(a) of the Act.

[5] The Applicant has 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 a substantial change to the Agreement. The undertakings are taken to be terms of the Agreement.

[6] Subject to the undertakings referred to above, and on the basis of the material contained in the application and accompanying statutory declaration, 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.

[7] The Community and Public Sector Union and the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia, 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) and based on the statutory declarations provided by both of these organisations, I note that the Agreement covers these organisations.

[8] The Agreement is approved and, in accordance with s.54(1)(b), will operate from 25 August 2020. The nominal expiry date of the Agreement is 1 July 2023.

DEPUTY PRESIDENT

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