New Town WA Pty Ltd T/A New Town Toyota

[2019] FWCA 3833

[2019] FWCA 3833

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

New Town WA Pty Ltd T/A New Town Toyota
(AG2019/775)

NEW TOWN TOYOTA REMOTE SITE ENTERPRISE AGREEMENT 2019

Vehicle industry
COMMISSIONER HARPER-GREENWELL	MELBOURNE, 3 JUNE 2019

Application for approval of the New Town Toyota Remote Site Enterprise Agreement 2019.

[1] An application has been made for approval of an enterprise agreement known as the New Town Toyota Remote Site Enterprise Agreement 2019 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by New Town WA Pty Ltd T/A New Town Toyota. The Agreement is a single enterprise agreement.

[2] The Employer has provided written undertakings. A copy of the undertakings is attached in Annexure A. I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement and that the undertakings will not result in substantial changes to the Agreement.

[3] Subject to the undertakings referred to above, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 as are relevant to this application for approval have been met. The Agreement does not cover all of the employees of the employer, however, taking into account the factors in Section 186(3) and (3A) I am satisfied that the group of employees was fairly chosen.

[4] I observe that clauses 4.3 and 4.7.2 of the Agreement is likely to be inconsistent with the National Employment Standards (NES). However, noting the undertaking provided by the employer at point 1 below, I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

[5] I note that clause 3.2.2. of the Agreement makes provision for the employer to deduct any monies that are agreed to be owing from an employee’s final pay and for the employer to withhold all outstanding monies until the matter is resolved where there is disagreement. In my view, this clause may not be a permitted deduction within the meaning of s.324 of the Act, and pursuant to s.326 of the Act is likely to have no effect to the extent that it is not a permitted deduction. However, notwithstanding my views on that, it is not a matter to which I am to have regard in terms of whether or not the Agreement should be approved and does not represent a barrier to the approval of the Agreement.

[6] Pursuant to s.205(2) of the Act, the model consultation term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.

[7] The Agreement was approved on 3 June 2019 and, in accordance with s.54, will operate from 10 June 2019. The nominal expiry date of the Agreement is 3 June 2023.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

<AE503734  PR708966>

Annexure A