Martin Brower Australia Pty Ltd
[2019] FWCA 6883
•4 OCTOBER 2019
| [2019] FWCA 6883 |
| FAIR WORK COMMISSION |
| decision |
Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement
Martin Brower Australia Pty Ltd
(AG2019/2948)
Martin Brower Australia Pty Ltd and Transport Workers Union of Australia - National Enterprise Agreement 2019
| Road transport industry | |
| DEPUTY PRESIDENT BULL | SYDNEY, 4 OCTOBER 2019 |
Application for approval of the Martin Brower Australia Pty Ltd and Transport Workers Union of Australia - National Enterprise Agreement 2019.
An application (Form F16) has been filed by Martin Brower Australia Pty Ltd (the applicant) for the approval of an enterprise agreement known as the Martin Brower Australia Pty Ltd and Transport Workers Union of Australia - National Enterprise Agreement 2019 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single-enterprise agreement as per s.172(2) of the Act.
I am satisfied that each of the requirements of ss.186, 187 and 188 as are relevant to this application for approval have been met.
The Transport Workers’ Union of Australia (TWU), being a bargaining representative for the Agreement, has 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 the organisation.
Section 186(2)(c) of the Act states that the Commission must be satisfied, before approving an agreement, that terms of an agreement do not contravene s.55 of the Act, which provides that an agreement must not exclude a provision of the National Employment Standards (NES).[1]
I observe that the following provisions are likely to be inconsistent with the National Employment Standards (NES):
· Clause 54 of the Agreement provides that an employee shall make verbal contact with their Supervisor / Manager to inform them of their inability to attend for duty as soon as possible before the commencement of their shift. If the employee cannot, a family member is required to instead. A similar statement is made in relation to carer’s leave at clause 56 of the Agreement. This may be inconsistent with s.107(2)(a) of the NES which provides that notice must be given to the employer as soon as practicable (which may be a time after the leave has started).
· Clause 55 of the Agreement provides a definition for immediate family which states that a de facto spouse means a person who lives with the employee as husband or wife on a bona fide domestic basis. Furthermore, the definition does not provide for a child, parent, grandparent or grandchild of a spouse or de facto partner of the employee. This appears inconsistent with the definition as provided in the dictionary under s.12 of the Act.
· Clause 56 of the Agreement provides that a permanent employee may use their leave entitlements to care for an immediate family member who is ill. This also appears to be inconsistent with s.102 of the NES which provides that an employee is entitled to carer’s leave) when a member of the employee’s immediate family, or a member of the employee’s household, requires care or support because of: a personal illness, or personal injury, affecting the member; or an unexpected emergency affecting the member.
Clause 5 of the Agreement, however, specifically incorporates the NES, and states that if there is any inconsistency between the NES and the terms of the Agreement, the terms more beneficial to the employee apply. I am therefore satisfied, as required by s 186(2)(c) of the Act, that the terms of the Agreement do not contravene s.55 of the Act.
It is further noted that s.56 of the Act provides that any NES-offending provisions in an agreement cannot have effect.
The Agreement is approved and, in accordance with s.54 of the Act, will operate from 7 days from the date of approval. The nominal expiry date of the Agreement is 30 June 2022.
DEPUTY PRESIDENT
[1] See s.55(1) of the Fair Work Act 2009
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