Kenshaw Electrical Pty Ltd T/A Kenshaw Electrical
[2024] FWCA 1891
•23 MAY 2024
| [2024] FWCA 1891 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.185—Enterprise agreement
Kenshaw Electrical Pty Ltd T/A Kenshaw Electrical
(AG2024/1474)
KENSHAW ELECTRICAL PTY LTD CLERICAL AND ADMINISTRATIVE WORKERS ENTERPRISE AGREEMENT 2024
| Manufacturing and associated industries | |
| DEPUTY PRESIDENT GRAYSON | SYDNEY, 23 MAY 2024 |
Application for approval of the Kenshaw Electrical Pty Ltd Clerical and Administrative Workers Enterprise Agreement 2024
Introduction
Kenshaw Electrical Pty Ltd T/A Kenshaw Electrical (the Employer) has made an application for approval of an enterprise agreement known as the Kenshaw Electrical Pty Ltd Clerical and Administrative Workers Enterprise Agreement 2024 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement.
National Employment Standards precedence term
Clause 25.7 states that leave loading shall be paid to the employee “at the time in which leave has been taken”. Section 90(2) of the Act provides that an employer must pay amounts in respect of leave that would have been payable had the employee taken that period of leave upon termination.
Clause 33.8 of the Agreement provides that where an employee has given notice of termination, and the employee has an obligation for repayment or reimbursement to the company for any reason, from the time of receipt of such notice the employer can “withhold monies” to the full value of the repayment or reimbursement from any payments otherwise due to the employee. The effect of this clause does not appear to limit the source of monies which may be withheld or deducted, and accordingly appears to permit the employer to withhold or deduct monies owing to the employee under the NES (such as accrued but unused annual leave or long service leave on termination), which may be inconsistent with Chapter 2 Part 2.2 Division 2 of the Act
To the extent that the above clauses may be inconsistent with the National Employment Standards (NES), I note that in accordance with the NES precedence term in Clause 6.1 of the Agreement, these clauses will be read and interpreted in conjunction with the NES.
Section 190 Undertakings
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
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.
Approval
The Agreement is approved and, in accordance with s.54 of the Act, will operate from 30 May 2024. The nominal expiry date of the Agreement is 30 June 2027.
DEPUTY PRESIDENT
Printed by authority of the Commonwealth Government Printer
<AE524742 PR775301>
ANNEXURE A
0
0
0