Primero Group Limited
[2024] FWCA 4206
•29 NOVEMBER 2024
| [2024] FWCA 4206 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s 185—Enterprise agreement
Primero Group Limited
(AG2024/4139)
PRIMERO ENTERPRISE AGREEMENT 2024
| Building, metal and civil construction industries | |
| COMMISSIONER LIM | PERTH, 29 NOVEMBER 2024 |
Application for approval of the Primero Enterprise Agreement 2024.
Primero Group Limited (the Applicant) has made an application for the approval of an enterprise agreement known as the Primero Enterprise Agreement 2024 (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.
The application was accompanied by a signature page that did not comply in all respects with Regulation 2.06A of the Fair Work Regulations 2009 (Cth) (the Regulations). An amended signature page was subsequently filed. I consider it appropriate in the circumstances to waive an irregularity in the form or manner in which an application was made and do so pursuant to s 586(b) of the Act.
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.
The below clauses in the Agreement appear to be potentially inconsistent with the National Employment Standards (NES):
(a)Notification of absence: Clause 3.7 of the Agreement appears inconsistent with s 107 of the Act which provides that notice of taking leave must be given as soon as practicable (which may be a time after the leave has started).
(b)Personal leave absence: Clause 14.1.1 of the Agreement provides that in the case of taking personal leave, the employee must provide a medical certificate. This may be more restrictive than s 107(3) of the Act which provides that if required by the employer an employee must give the employer evidence that would satisfy a reasonable person.
(c)Deductions on termination: Clause 17.1.9 of the Agreement states that ‘where the Employee fails to provide the required notice, the Employer may deduct from any monies owing an amount equivalent to the notice not provided.’ As the clause does not limit the monies to wages only, it raises the issue of deductions being made from the employee’s NES entitlements. Furthermore, clause 17.1.12 states that ‘on termination of employment, the Employee shall return all the Employer's property including, but not limited to, uniforms, credit cards, documents and equipment (including but not limited to laptops, mobile phones and any Employer owned tools) prior to receiving any final payments,’ which may preclude an employee from being paid out NES entitlements.
However, noting Clause 1.5.1 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 NES.
On 18 November 2024, the Commission received a request to redact the names and addresses on the signature page of the Agreement. The basis of the request was that the bargaining representatives’ residential addresses were used.
In reaching my Decision to redact the names and addresses of the bargaining representatives in the Agreement, I have had regard to the Decision of the Full Bench in The Australian Workers’ Union v Oji Foodservice Packaging Solutions (Aus) Pty Ltd[1] (Oji).
In Oji, the Full Bench of the Fair Work Commission stated:
[64] … The enterprise agreement document that is required to be lodged with the Commission under the FW Act, the Fair Work Regulations 2009 and the Fair Work Commission Rules 2013 (Rules) is the 'signed copy of the agreement' referred to in s 185(2). But for the reasons which follow, we are not persuaded that the agreement that must be published under s.601(4)(b) is that signed copy.
[65] Section 601(4)(b) is directed at the publication of the enterprise agreement that has been approved by the Commission under Part 2-4. The enterprise agreement which is approved, and which must be published, is not the document lodged with the Commission (ie the signed copy of the agreement referred to in s.185(2)) but rather is the enterprise agreement 'as made'.
[66] An enterprise agreement is made when it is approved by a vote of employees (ss.192(1) and (2)). After an 'enterprise agreement is made', a bargaining representative must apply to the Commission for 'approval of the agreement' (s.185(1)). The application must be accompanied by a 'signed copy of the agreement' and any declarations required by the Rules (s.185(2)).
...
[68] It follows from this that if an enterprise agreement as made does not include the details of the signatories to the agreement, the Commission is not compelled by s.601(4)(b) to publish those details (although it may choose to do so). Further, in the event the signed copy of the agreement lodged with the Commission is to be published, the details of the signatories may be redacted and could also be the subject of an order under s.594(1)(c).
In reaching my Decision to redact the names and addresses of the bargaining representative in the Agreement, I do not rely upon s 594 of the Act. My decision to redact founds itself within the fact that when the Commission approves an enterprise agreement, it does not approve an enterprise agreement in the form as lodged with the Commission. Rather, the Commission approves an enterprise agreement in the form ‘as made’. That is, when it is approved by a vote of the employees in accordance with ss 182(1) and (2). As the Agreement was approved by a majority of employees on 8 October 2024, with the Applicant filing an amended signature page on 22 November 2024, the Agreement I approve is the Agreement ‘as made’.
The Agreement was approved on 29 November 2024 and, in accordance with s 54, will operate from 6 December 2024. The nominal expiry date of the Agreement is 29 November 2028.
COMMISSIONER
[1] [2018] FWCFB 7501.
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