National Masonry Pty Ltd

[2024] FWCA 1268

[2024] FWCA 1268

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

National Masonry Pty Ltd

(AG2024/849)

NATIONAL MASONRY DEER PARK ENTERPRISE AGREEMENT 2023-2026

Cement and concrete products
COMMISSIONER MIRABELLA	MELBOURNE, 9 APRIL 2024

Application for approval of the National Masonry Deer Park Enterprise Agreement 2023-2026.

1. National Masonry Pty Ltd (the Employer) has made an application for approval of an enterprise agreement known as the National Masonry Deer Park Enterprise Agreement 2023-2026 (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) (the Amending Act) 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.

1. Under transitional arrangements, amendments made by Part 14 of Schedule 1 to the Amending Act in relation to genuine agreement requirements for agreement approval applications apply where the notification time for the agreement was on or after 6 June 2023. The genuine agreement provisions in Part 2-4 of the FW Act, as it was just before 6 June 2023, continue to apply in relation to agreement approval applications where the notification time for the agreement was before 6 June 2023. Question 18 of the Form F17A provides that the notification time for the Agreement was 27 March 2023.

1. Under transitional arrangements, amendments made by Part 16 of Schedule 1 to the Amending Act in relation to the better off overall test requirements for agreement approval applications apply where the agreement was made on or after 6 June 2023. The better off overall test provisions in Part 2-4 of the FW Act, as it was just before 6 June 2023, continue to apply in relation to agreement approval applications where the agreement was made before 6 June 2023. Question 26.2 of the Form F17A provides that the Agreement was made on 8 March 2024.

1. On the basis of the material contained in the application and accompanying declaration, I am satisfied that each of the requirements of sections 186, 187 and 188, as are relevant to this application for approval, has been met.

1. The Employer provided employees with a notice of employee representational rights (the NERR) that was not in its prescribed form. The NERR notified employees that the enterprise agreement being bargained for was to cover employees under the Manufacturing and Associated Industries Occupation Award 2010, rather than the Concrete Products Award 2020. Pursuant to s.188(2), I am satisfied that the Agreement would have been genuinely agreed to but for the minor procedural error made in relation to the requirement 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(2) of the FW Act.

1. I observe that clause 28(c) regarding abandonment of employment is likely to be inconsistent with the National Employment Standards (the NES). However, noting clause 6(a) 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 9 April 2024 and, in accordance with s.54, will operate from 16 April 2024. The nominal expiry date of the Agreement is 30 September 2026.

COMMISSIONER

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