Maxwell Engineering Pty Ltd T/A Maxwell Engineering

[2024] FWCA 3297

[2024] FWCA 3297

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Maxwell Engineering Pty Ltd T/A Maxwell Engineering

(AG2024/3159)

MAXWELL ENGINEERING AND THE AWU (INFRABUILD LAVERTON NORTH) AGREEMENT 2024

Manufacturing and associated industries
COMMISSIONER MIRABELLA	MELBOURNE, 18 SEPTEMBER 2024

Application for approval of the Maxwell Engineering and the AWU (InfraBuild Laverton North) Agreement 2024.

1. Maxwell Engineering Pty Ltd T/A Maxwell Engineering (the Employer) has made an application for approval of an enterprise agreement known as the Maxwell Engineering and the AWU (InfraBuild Laverton North) Agreement 2024 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (Cth) (the FW Act). The Agreement is a single enterprise agreement.

1. The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) made a number of changes to enterprise agreement approval processes in Part 2-4 of the FW Act, that commenced operation on 6 June 2023. The notification time for the Agreement was 25 July 2024 and the Agreement was made on 19 August 2024. Accordingly, both the genuine agreement and the better off overall test requirements are those applying on and from 6 June 2023.

1. The notice of employee representational rights (the NERR) was drafted using an outdated template and was, therefore, not in its prescribed form. Pursuant to s.188(5), I am satisfied that the Agreement would have been genuinely agreed to but for the minor procedural error made in relation to the requirements in s.174(1A) of the FW Act. I am satisfied that the employees covered by the Agreement were not likely to have been disadvantaged by the error. As a result, I am satisfied that the Agreement has been genuinely agreed to within the meaning of s.188(5) of the FW Act.

1. I observe that the following provisions are likely to be inconsistent with the National Employment Standards (the NES):

·   Clause 27.2: Withholding monies at termination

·   Clause 36.1(c): Personal leave

1. However, noting clause 6.2 of the Agreement, I am satisfied that the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

1. The Australian Workers’ Union, being a bargaining representative for the Agreement, has given notice under s.183 of the FW Act that it wants the Agreement to cover it. In accordance with s.201(2), and based on the declaration provided by the organisation, I note that the Agreement covers the organisation.

1. The Agreement was approved on 18 September 2024 and, in accordance with s.54, will operate from 25 September 2024. The nominal expiry date of the Agreement is 30 June 2025.

COMMISSIONER

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Annexure A