Newgen Property Pty Ltd

[2021] FWCA 4888

[2021] FWCA 4888

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Newgen Property Pty Ltd
(AG2021/6564)

NEWGEN PROPERTY PTY LTD ENTERPRISE AGREEMENT 2021

Building, metal and civil construction industries
COMMISSIONER PLATT	ADELAIDE, 10 AUGUST 2021

Application for approval of the Newgen Property Pty Ltd Enterprise Agreement 2021.

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

[2] The matter was allocated to my Chambers on 9 August 2021 and was determined on the papers.

[3] It is noted that employees of the Applicant were provided with a written notice detailing the time, place and method of voting on 20 July 2021, with voting commencing on 26 July 2021. As such, the requirements of s.180(5) of the Act have not been met. Given that all employees covered by the Agreement voted on it, I do not believe the Applicant’s failure to comply with s.180(5) had the effect of disenfranchising any employee who is covered by the proposed Agreement from participation in the voting process. I am satisfied (taking into consideration s.188(2) of the Act and the decision in Huntsman Chemical Company Australia Pty Limited T/A RMAX Rigid Cellular Plastics & Others) that the procedural or technical error is minor and that the employees were not likely to have been disadvantaged, and accordingly, that there has been a genuine agreement.

[4] Clause 7.5.3.1 states that the company may deduct the cost of a forward journey fare from an employee who terminates employment within two weeks of commencing on the job and who does not return to the place of engagement. This does not constitute a permitted deduction as considered by s.324 of the Act and will have no effect as per s.326 of the Act.

[5] There are multiple National Employment Standards (NES) issues which require comment:

•  The definition of continuous service in the Agreement appears to exclude unpaid stand down and unpaid community service leave, which is inconsistent with the definition of continuous service at s.22 of the Act.

•  Clause 3.2.8 of the Agreement does not provide that the employer must make an offer of conversion to permanent employment in writing within a period of 21 days after the end of a 12 month period of engagement where the employer has worked regular and systematic hours during at least 6 months of that 12 month period, as required by s.66B of the Act.

•  Clause 6.2.6 of the Agreement states that where a daily hire employee leaves the employment of the company after five consecutive working days, they will be paid any outstanding leave as at the date of termination. This is inconsistent with the progressive accrual provisions at s.87(2) of the Act.

•  Clauses 3.10.6 and 6.3.3 of the Agreement state that an employee who takes personal leave will notify the employer prior to 8.00 am on the day of the absence unless special circumstances apply. This appears to be inconsistent with s.107(2)(a) of the Act, which requires that the employee gives notice as soon as practicable (which may be a time after the leave has started).

•  Clause 6.3.3 of the Agreement also states that, as far as practicable, the employee shall state the nature of the injury or illness, which appears more onerous than the notification requirements at s.107(2)(b) of the Act.

•  Clause 6.4.1 of the Agreement further states that all absences relating to the illness of an immediate family member must be supported by evidence setting out the illness of the relevant immediate family member. This is more onerous than the evidentiary requirements at s.107(3) of the Act, which merely requires evidence that would satisfy a reasonable person.

•  Clause 6.4.3 of the Agreement appears to exclude unpaid carer’s leave in the case of a member of the employee’s household. This is inconsistent with s.102 of the Act.

•  Clause 3.5.1 of the Agreement states that if an employee fails to give notice of termination, the employer will have the right to withhold an amount equal to notice not given from any monies owed including monies due for annual leave or pro-rata leave. This term seems to have the effect of reducing employees’ NES annual leave and long service leave entitlements.

[6] Clause 1.5.2 is a NES Precedence Clause, in that it states that “where there is an inconsistency between this agreement and the NES, and the NES provides a greater benefit, the NES provision 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.

[7] 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.

[8] 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 17 August 2024.

COMMISSIONER

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