InfraBuild (Newcastle) Pty Ltd T/A InfraBuild Steel Conti-Stretch

Case •

[2024] FWCA 3214

•

9 SEPTEMBER 2024
[2024] FWCA 3214

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

InfraBuild (Newcastle) Pty Ltd T/A InfraBuild Steel Conti-Stretch

(AG2024/3063)

INFRABUILD STEEL CONTI-STRETCH ENTERPRISE AGREEMENT 2024 - 2027

Manufacturing and associated industries

DEPUTY PRESIDENT GRAYSON

SYDNEY, 9 SEPTEMBER 2024

Application for approval of the InfraBuild Steel Conti-Stretch Enterprise Agreement 2024 - 2027

Introduction

  1. InfraBuild (Newcastle) Pty Ltd T/A InfraBuild Steel Conti-Stretch (the Employer) has made an application for approval of an enterprise agreement known as the InfraBuild Conti-Stretch Enterprise Agreement 2024 - 2027 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement.

Transitional arrangements under the Secure Jobs, Better Pay amendment

  1. The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) (Amending Act) made a number of changes to enterprise agreement approval processes in Part 2-4 of the Act, that commenced operation on 6 June 2023. The notification time for the Agreement under s.173(2) was 15 April 2024 and the Agreement was made on 29 July 2024. Accordingly, both the genuine agreement and the better off overall test requirements are those applying on and from 6 June 2023.

National Employment Standards (NES) Precedence Term

  1. Clause 24.2 of the Agreement provides for the withholding of monies in circumstances where an employee has given insufficient notice of resignation. Clause 24.2 provides that in these circumstances, the employer ‘may withhold from any monies due to the Employee on termination under this Agreement or the NES, an amount not exceeding the amount the Employee would have been paid under this Agreement in respect of the period of notice required by this clause less any period of notice actually given by the Employee.’ This clause appears to permit the employer to deduct monies from employee’s entitlements under the NES (such as notice of termination, accrued but unused annual leave or long service leave on termination). Accordingly, this clause may be inconsistent with Chapter 2 Part 2.2 Division 2 of the Act.

  1. Clause 25.5(b) of the Agreement provides that the entitlements set out in the Redundancy clause will not apply to employees who are offered comparable alternative employment by the Employer. This clause does not appear to provide that such a variation to redundancy entitlements is subject to the approval of an application to the FWC pursuant to s.120 of the Act, and accordingly is inconsistent with the NES.

  1. Clause 16.3 of the Agreement provides that notice of taking personal or carers’ leave is to be provided by an employee ‘as soon as reasonably practicable, usually within 24 hours’ [emphasis added]. This may be inconsistent with s.107(2) of the Act, which states that notice must be given to the employer as soon as practicable (which may be a time after the leave has started and later than 24 hours).

  1. I note that in accordance with the NES precedence term in Clause 5.1 of the Agreement, these clauses will be read and interpreted in conjunction with the NES.

Delegates’ Rights Term

  1. The Agreement does not contain a delegates’ rights term, as required by s.205A(1) of the Act. Pursuant to s.205A(2) of the Act, the workplace delegates’ rights term from the Manufacturing and Associated Industries and Occupations Award 2020 is taken to be a term of the Agreement.

Better off overall test (BOOT)

  1. The employer provided representations to the Commission that all employees covered by the Agreement are full-time employees, and that the Company does not currently or typically, engage any part-time or casual employees who would be covered by this Agreement. On that basis, I am satisfied that the Agreement passes the BOOT.

Section 190 Undertakings

  1. 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

  1. 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

  1. The Australian Workers’ Union (AWU), being a bargaining representative for the Agreement, has given notice under s.183 of the Act that it wants the Agreement to cover it.

  1. In accordance with s.201(2), I note that the Agreement covers the AWU.

Approval

  1. The Agreement is approved and, in accordance with s.54 of the Act, will operate from 16 September 2024. The nominal expiry date of the Agreement is 31 August 2027.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<AE526023  PR779087>

ANNEXURE A

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