Precise Prefabs (Vic) Pty Ltd T/A Precise Truss

[2019] FWCA 858

[2019] FWCA 858

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Precise Prefabs (Vic) Pty Ltd T/A Precise Truss
(AG2018/6149)

PRECISE TRUSS ENTERPRISE AGREEMENT 2018 - 2022

Timber and paper products industry
COMMISSIONER LEE	MELBOURNE, 13 FEBRUARY 2019

Application for approval of the Precise Truss Enterprise Agreement 2018 - 2022.

[1] An application has been made for approval of an enterprise agreement known as the Precise Truss Enterprise Agreement 2018 - 2022 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Precise Prefabs (Vic) Pty Ltd T/A Precise Truss (the Applicant). The Agreement is a single enterprise agreement.

[2] I note that the Notice of Employee Representational Rights (NERR) provided to employees indicated that the Agreement covers employees who perform manufacturing work at the Dandenong company site. Clause 3.3 of the Agreement provides that the Agreement covers employees working in classifications within the scope of the Timber Industry Award 2010 (the Award). The Award appears to contain classifications other than those performing manufacturing work and appears broader than the coverage that the NERR provides. On 6 February 2019, staff of the Fair Work Commission (the Commission) wrote to the Applicant in relation to this issue. On 7 February 2019, the Commission received submissions from the Applicant’s representative. The Applicant submits that there are only 50 employees based at the one site. Those employees to be covered by the Agreement all received a copy of the NERR and were also verbally advised that the Agreement would cover employees who work in the factory. All employees who work in the factory are covered by the Award. I am satisfied that all employees covered by the Agreement and employed at the notification time for the Agreement, were notified of the right to be represented by a bargaining representative. Although it does not appear that the coverage clause in the NERR accurately reflects the coverage of the Agreement, I refer to s.188 (2) of the Act and am satisfied that this error constitutes a minor technical error, and that employees covered by this agreement are not likely to be disadvantaged as a result of the error.

[3] I am satisfied that each of the requirements of ss.186, 187 and 188 as are relevant to this application for approval have been met.

[4] The Construction, Forestry, Maritime, Mining and Energy Union 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) I note that the Agreement covers the organisation.

[5] I observe that the following provision is likely to be inconsistent with the National Employment Standards (NES):

•  Clause 26 - Personal Leave.

However, noting clause 4.6 of the Agreement, I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

[6] I note that clause 19 of the Agreement provides that if an employee leaves the employer for any reason within three months of receiving a uniform from the employer, the cost of that uniform will be deducted pro-rata from the employee’s final pay. In my view, the clause may provide for deductions which are not permitted deductions within the meaning of s.324 of the Act. Pursuant to s.326 of the Act, the clause will have no effect to the extent that it is not a permitted deduction. However, notwithstanding my view 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 it does not represent a barrier to the approval of the Agreement.

[7] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 20 February 2019. The nominal expiry date of the Agreement is 1 July 2022.

COMMISSIONER

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