PWG King And Sons Pty Ltd

[2022] FWCA 3249

[2022] FWCA 3249

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

PWG King And Sons Pty Ltd

(AG2022/3725)

PWG KING & SONS PTY LTD ENTERPRISE AGREEMENT 2022

Manufacturing and associated industries
DEPUTY PRESIDENT MILLHOUSE	MELBOURNE, 16 SEPTEMBER 2022

Application for approval of the PWG KING & SONS PTY LTD ENTERPRISE AGREEMENT 2022

1. An application has been made for approval of an enterprise agreement known as the PWG KING & SONS PTY LTD ENTERPRISE AGREEMENT 2022 (Agreement). The application was made pursuant to s 185 of the Fair Work Act 2009 (Cth) (Act). It has been made by PWG King And Sons Pty Ltd. The Agreement is a single enterprise agreement.

1. The notice of vote does not contain the place of the vote. Further, the employees covered by the Agreement were not provided with access to a copy of the Manufacturing and Associated Industries and Occupations Award 2020, which is incorporated into the Agreement. Having regard to the material before the Commission I am satisfied that:

(a)   the errors identified at [2] constitute minor procedural or technical errors for the purposes of s 188(2)(a) of the Act; and

(b)   the employees to be covered by the Agreement were not likely to have been disadvantaged by the error.[1]

1. 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.

1. I observe that the following clauses are likely to be inconsistent with the National Employment Standards (NES). However, noting clause 4.2 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:

• Clause 7.4(a) provides that the date of termination for an unexplained absence is the date that the employer determines that it has exhausted all reasonable attempts to notify the employee and/or the employee has not provided a reasonable excuse for their absence. This may be inconsistent with s 117(1) of the Act, which provides that an employer may not terminate an employee’s employment without notice of the date of termination, which may not be a date before the notice is given.[2]

• Clause 20.2 provides that the employer may require an employee to take annual leave to meet operational requirements or to reduce their accrued leave balance. This clause is not qualified in the manner prescribed by s 93(3) of the Act, being that the requirement must be reasonable.

• Clause 25.1 appears to limit recognised public holidays under the Agreement to 12 gazetted days. This may not be consistent with s 115(1)(b) of the Act, which provides for any other day prescribed as a public holiday under State or Territory laws.

1. The “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ 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.

1. The Agreement is approved and, in accordance with s 54 of the Act, will operate from 23 September 2022. The nominal expiry date of the Agreement is 31 July 2025.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

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[1] Huntsman Chemical Company Australia Pty Limited t/a RMAX Rigid Cellular Plastics and Others [2019] FWCFB 318

[2] Bienias v Iplex Pipelines Australia Pty Limited[2017] FWCFB 38 at [58]

Printed by authority of the Commonwealth Government Printer

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