Narrogin Hay Pty Ltd
[2023] FWCA 983
•5 APRIL 2023
| [2023] FWCA 983 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.185—Enterprise agreement
Narrogin Hay Pty Ltd
(AG2023/734)
NARROGIN HAY PTY LTD ENTERPRISE AGREEMENT 2023
| Agricultural industry | |
| DEPUTY PRESIDENT BEAUMONT | PERTH, 5 APRIL 2023 |
Application for approval of the Narrogin Hay Pty Ltd Enterprise Agreement 2023
Narrogin Hay Pty Ltd (the Applicant) has made an application for the approval of an enterprise agreement known as the Narrogin Hay Pty Ltd Enterprise Agreement 2023 (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.
Several issues were identified regarding the exclusion of certain provisions of the National Employment Standards (NES) or inconsistencies. Although clauses 12.5, 13.3, 29.3, 30.1, 31.6, and 33.1 appear to be, in part, contrary to various provisions of the NES in Part 2-2 of the Act, I am satisfied that these issues are resolved by the inclusion of clause 2.4 of the Agreement.
It is observed that clause 12.5 of the Agreement states that ‘[t]he [Applicant] will not be obliged to make a redundancy payment if suitable alternative employment is obtained for an employee, whether or not that offer of suitable alternative employment is accepted.’ However, s 120(2) of the Act provides that the amount of redundancy pay owed to an employee can only be reduced upon an application to the Commission.
Clause 13.3 of the Agreement states in the case of abandonment of employment, ‘the employee will be deemed to have resigned without notice effective from his/her last day of work, last day of approved leave, or the last day of authorised absence, whichever is the later, and his/her entitlements on termination will be calculated accordingly.’ However, s 117(1) of the Act provides that employees must be given notice of the day of termination, which cannot be before the day the notice is given.
Clause 29.3 of the Agreement does not require that the Applicant’s request that an employee work on a public holiday be reasonable, as required by s 114(2) of the Act.
Clause 30.1 of the Agreement expresses the entitlement to annual leave in days. This may result in a lesser entitlement to annual leave compared to that conferred by s 87 of the Act, which is expressed in weeks. While the Applicant was offered the opportunity to address the issue by way of submissions, its preference was to rely on the NES precedence clause at clause 2.4 of the Agreement.
Clause 31.6 states if it is not practicable for the employee to give prior notice of absence for personal/carer’s leave, the employee must notify the Applicant, by telephone, within one hour after the scheduled shift starting time. However, s 107(2)(a) of the Act provides that notice may be given after the leave has started, as long as it is given as soon as practicable.
The entitlement to compassionate leave contained in clause 33.1 of the Agreement does not include circumstances when a child in the employee’s immediate family or household is stillborn, or the employee, or the employee’s spouse or de facto partner, has a miscarriage, as is provided for in s 104(1) of the Act.
However, 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.
The Agreement was approved on 5 April 2023 and, in accordance with s 54, will operate from 12 April 2023. The nominal expiry date of the Agreement is 31 December 2025.
DEPUTY PRESIDENT
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