Montoro Pty Limited, Hollostone Pty Limited

[2022] FWCA 3835

[2022] FWCA 3835

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Montoro Pty Limited, Hollostone Pty Limited

(AG2022/4445)

Montoro Roofing and Masonry Pooraka Enterprise Agreement 2022

Manufacturing and associated industries
COMMISSIONER PLATT	ADELAIDE, 1 NOVEMBER 2022

Application for approval of the Montoro Roofing and Masonry Pooraka Enterprise Agreement 2022

1. An application has been made for approval of an enterprise agreement known as the Montoro Roofing and Masonry Pooraka Enterprise Agreement 2022 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act) by Montoro Pty Limited and Hollostone Pty Limited (the Applicants). The agreement is a single enterprise agreement.

1. The matter was allocated to my Chambers on 28 October 2022 and was determined on the papers.

1. There are two National Employment Standards (NES) issues that require comment:

·   Clause 4.4 of the Agreement provides for compassionate leave, however, is silent in relation to the entitlement when the employee, their spouse, or de facto partner has a miscarriage or gives birth to a stillborn child. This appears inconsistent with s.104(1)(c) of the Act.

·   Clause 5.1.7(a) of the Agreement states that the absence of an employee for a period of three working days without the consent of, or notification to, the employer, is evidence that they have abandoned their employment. Clause 5.1.7(b) of the Agreement states that the employee will be deemed to have abandoned their employment if they have not established that they were absent for a reasonable cause within 14 days from their last attendance or work or last permitted or notified absence. Clause 5.1.7(c) of the Agreement follows that termination shall operate from the last attendance at work or the last day’s absence in respect of which was granted, or the date of the last absence in respect of which notification was given to the employer, whichever is later. This may be inconsistent with the notice of termination requirements set out at s.117 of the Act.

1. Clause 1.6 of the Agreement acts as an effective NES precedence clause, in that it states that in the event of an inconsistency between the Agreement and the NES, and the NES provides a greater benefit, the NES will apply to the extent of the inconsistency. As a result of the NES precedence clause, the above clauses will not apply to the extent that they are inconsistent with the NES.

1. The Applicants have submitted an undertaking in the required form dated 31 October 2022. The undertaking deals with the following topics:

·  Clause 1.7(b)(ii) of the Agreement shall be amended such that a part-time employee cannot agree to work in excess of their agreed ordinary hours without receiving overtime.

·  Penalty rates have been included for employees who are rostered to work afternoon or night shift which does not continue for at least 5 successive afternoons or nights or at least 38 ordinary hours.

1. A copy of the undertakings has been provided to the bargaining representatives and I have sought their views in accordance with s.190(4) of the Act. The bargaining representatives that responded supported the undertakings.

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. The Australian Workers’ Union (AWU), 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 this organisation.

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 31 October 2026.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

<AE518023  PR747510>