Incat Tasmania Pty. Ltd. T/A Incat Tasmania Pty. Ltd.

[2024] FWCA 469

[2024] FWCA 469

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185 - Application for approval of a single-enterprise agreement

Incat Tasmania Pty. Ltd. T/A Incat Tasmania Pty. Ltd.

(AG2023/5498)

INCAT TASMANIA PTY. LTD. PRODUCTION EMPLOYEE ENTERPRISE AGREEMENT 2024

Manufacturing and associated industries
DEPUTY PRESIDENT MILLHOUSE	MELBOURNE, 6 FEBRUARY 2024

Application for approval of the Incat Tasmania Pty. Ltd. Production Employee Enterprise Agreement 2024

1. An application has been made for approval of an enterprise agreement known as the Incat Tasmania Pty. Ltd. Production Employee Enterprise Agreement 2024 (Agreement). The Application was made pursuant to s 185 of the Fair Work Act 2009 (Cth) (Act). It has been made by Incat Tasmania Pty. Ltd. T/A Incat Tasmania Pty. Ltd. (Employer). The Agreement is a single enterprise agreement.

1. The notification time for the Agreement and the date that the Agreement was made post-date 6 June 2023. Accordingly, the legislative changes to the Act in relation to the genuine agreement provisions and the better off overall test requirements apply to this approval application.[1]

1. The Employer has provided written undertakings. A copy of the undertakings is attached at 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.

1. Subject to the undertakings referred to above, I am satisfied that each requirement of ss 186, 187, 188 and 190 as are relevant to this application for approval have been met. For the purposes of the better off overall test, I have had regard to each of the matters in s 193A(2)-(7).

1. I observe that clause 6.3 of the Agreement (Compassionate Leave) is likely to be inconsistent with the National Employment Standards (NES), as it does not provide an entitlement to compassionate leave in the event of miscarriage or stillbirth in accordance with s 104 of the Act. However, noting clause 1.8 of the Agreement, I am satisfied that the more beneficial entitlements of the NES in the Act will prevail where there is an inconsistency between the Agreement and the NES.

1. The “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) and Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) being bargaining representatives for the Agreement each support the approval of the Agreement. Both the AMWU and CEPU have given notice under s 183 of the Act that it wants the Agreement to cover it. In accordance with s 201(2) of the Act I note that the Agreement covers each organisation.

1. The Agreement is approved and, in accordance with s 54 of the Act will operate from 13 February 2024. The nominal expiry date of the Agreement is 30 June 2025.

DEPUTY PRESIDENT

Annexure A

[1] The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Amending Act) broadly commenced operation with respect to the genuine agreement provisions and the better off overall test provisions of the Act on 6 June 2023. The transitional arrangements under the Amending Act are not applicable to the present application.

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