Popmarc Pty Ltd t/a Load 28

[2023] FWCA 2744

[2023] FWCA 2744

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Popmarc Pty Ltd t/a Load 28

(AG2023/2851)

LOAD 28 PTY LTD / CFMEU ENTERPRISE AGREEMENT 2023

Building, metal and civil construction industries
COMMISSIONER LIM	PERTH, 31 AUGUST 2023

Application for approval of the Load 28 Pty Ltd / CFMEU Enterprise Agreement 2023

1. Popmarc Pty Ltd has made an application for the approval of an enterprise agreement known as the Load 28 Pty Ltd/CFMEU 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.

1. The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) (Amending Act) made a number of changes to enterprise agreement approval processes in Part 2-4 of the Fair Work Act, that commenced operation on 6 June 2023. The notification time for the Agreement under s.173(2) was 8 June 2023 and the Agreement was made on 4 August 2023. Accordingly, both the genuine agreement and the better off overall test requirements are those applying on and from 6 June 2023.

1. 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.

1. I note that clause 5.6 provides for compassionate leave, however, is silent in relation to the entitlement to when the employee, their spouse, or de facto partner has a miscarriage or gives birth to a stillborn child. This appears to be inconsistent with s.104(1)(c) of the Act. Additionally, Appendix 3 contains an exhaustive list of public holidays that employees are entitled to but does not provide an entitlement to any other day or part-day declared or prescribed to be observed within a State or Territory, as provided by s.115(b) of the Act. However, noting clause 1.4(b)(iii) of the Agreement, I am satisfied that the more beneficial entitlements of the National Employment Standards (NES) will prevail where there is an inconsistency between the Agreement and the NES.

1. The Construction Forestry Maritime Mining and Energy Union (the CFMEU), 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), and based on the declaration provided by the organisation, I note that the organisation is covered by the Agreement.

1. The Agreement was approved on 31 August 2023 and, in accordance with s 54, will operate from 7 September 2023. The nominal expiry date of the Agreement is 30 June 2025.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

<AE521288  PR765600>