Metlabs Australia Pty Ltd

[2022] FWCA 89

[2022] FWCA 89

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185 - Application for approval of a single-enterprise agreement

Metlabs Australia Pty Ltd

(AG2021/9060)

Metlabs Australia Pty Ltd Enterprise Agreement 2021

Manufacturing and associated industries
COMMISSIONER PLATT	ADELAIDE, 13 JANUARY 2022

Application for approval of the Metlabs Australia Pty Ltd Enterprise Agreement 2021

1. An application has been made for approval of an enterprise agreement known as the Metlabs Australia Pty Ltd Enterprise Agreement 2021 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act) by Metlabs Australia Pty Ltd (the Applicant). The agreement is a single enterprise agreement.

1. The matter was allocated to my Chambers on 12 January 2022 and was determined on the papers.

1. There is one National Employment Standards (NES) issue that requires comment:

·   Clause 32(b) of the Agreement states that an employee’s ordinary hours of work shall be an average of 40 hours per week. Section 62 of the Act states that an employer must not request a full-time employee to work more than 38 hours in a week unless the additional hours are reasonable.

1. Clause 5 of the Agreement acts as an effective NES precedence clause, in that it states that in the NES will continue to apply where any entitlement in the Agreement is inferior when compared to the NES. As a result of the NES precedence clause, clause 32(b) will not apply to the extent that it is inconsistent to the NES, meaning that employees will only be required to work the additional hours to the extent that those hours are reasonable.

1. The Applicant has submitted an undertaking in the required form dated 13 January 2022. The undertaking deals with the following topics:

·   The definition of a shift worker will be for the purposes of the National Employment Standards (NES).

·   An employee will not be summarily dismissed for negligence unless the negligence is serious enough to come within the definition of misconduct set out at Regulation 1.07 of the Fair Work Regulations 2009.

·   Termination of employment for abandonment under clause 26 of the Agreement will be actioned in a manner consistent with the NES.

·   Any reduction to an employee’s work hours under clause 32(m) of the Agreement will only take place after consultation with the employee, and with the employee’s written agreement.

·   Despite clause 39(e)(ii) of the Agreement, when an employee takes personal/carer’s leave, the company will not require the name and relationship to the employee of the person requiring care and will accept evidence that meets the requirements of s.107 of the Act.

·   The nominal expiry date of the Agreement will be four years from the approval of the Agreement.

1. No bargaining representatives were appointed.

1. The undertaking appears to meet the requirements of s.190(3) of the Act and I have accepted it. As a result, the undertakings are taken to be a term of the Agreement.

1. I am satisfied that each of the requirements of ss.186, 187, 188 and 190 of the Act as are relevant to this application for approval have been met.

1. The Agreement is approved and, in accordance with s.54 of the Act, will operate from 7 days after the date of approval of the Agreement. The nominal expiry date is 13 January 2026.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

<AE514592  PR737446>