Matrix Composites And Engineering Ltd T/A As Above
[2024] FWCA 1573
•10 MAY 2024
| [2024] FWCA 1573 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s 185—Enterprise agreement
Matrix Composites And Engineering Ltd T/A As Above
(AG2024/1265)
MATRIX COMPOSITES & ENGINEERING LTD ENTERPRISE AGREEMENT 2024
| Manufacturing and associated industries | |
| COMMISSIONER LIM | PERTH, 10 MAY 2024 |
Application for approval of the Matrix Composites & Engineering Ltd Enterprise Agreement 2024
Matrix Composites and Engineering Ltd T/A As Above (the Applicant) has made an application for the approval of an enterprise agreement known as the name of agreement (the Agreement). The application was made under s 185 of the Fair Work Act 2009 (Cth) (the Act). The Agreement is a single enterprise agreement.
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 21 August 2023 and the Agreement was made on 10 April 2024 Accordingly, both the genuine agreement and the better off overall test requirements are those applying on and from 6 June 2023.
The title of the agreement in the Notice of Employee Representational Rights differed from the title contained in clause 1 of the Agreement. Pursuant to s 188(5) of the Act, I am satisfied that the agreement would have been genuinely agreed to but for the minor technical errors made in relation to the requirements set out in s 174(1A) of the Act. I am satisfied that the employees covered by the agreement were not likely to have been disadvantaged by the errors. As a result, I am satisfied that the Agreement has been genuinely agreed within the meaning of s 188(5) of the Act.
On the basis of the material contained in the application and accompanying declarations, I am satisfied that each of the requirements of ss 186, 187 and 188 of the Act as are relevant to this application for approval have been met.
I note that the following clauses in the Agreement appear to be inconsistent with the National Employment Standards (NES):
(a)Clause 14 (d) of the Agreement provides that to be entitled to sick leave an Employee must advise the Company as soon as reasonably practical of their inability to attend work because of personal illness or injury. Whenever practicable, this should occur before the commencement of the Employee’s shift, and they should indicate the duration/expected duration of the absence. This clause appears to provide a more stringent notice requirement than required by s 107(2)(a) of the Act, which provides that the notice must be given to the employer as soon as practicable (which may be a time after the leave has started).
(b)Clause 28.3(a) of the Agreement states that if an Employee fails to give notice in accordance with clause 28.2 or otherwise fails to work out the required notice period, the relevant salary or wage in lieu of notice will be due and payable to the Company and will be set-off against any monies due to the Employee (for examples, outstanding salary and/or accrued annual leave). The effect of this clause is it appears to permit the employer to withhold monies owing to the employee under the NES (such as accrued but unused annual leave or long service leave on termination or redundancy payments). This raises the issue that clause 6.6(e) may be inconsistent with Chapter 2 Part 2.2 Division 2 of the Act.
However, I am satisfied that under clause 3.4(b) of the Agreement, the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.
The Agreement was approved on 10 May 2024 and, in accordance with s 54, will operate from 17 May 2024. The nominal expiry date of the Agreement is 10 May 2027.
COMMISSIONER
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