Q.H. & M. Birt Pty. Ltd.
[2024] FWCA 1158
•2 APRIL 2024
| [2024] FWCA 1158 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.185—Enterprise agreement
Q.H. & M. Birt Pty. Ltd.
(AG2024/283)
Q H & M BIRT PTY LTD NATIONAL ENTERPRISE AGREEMENT 2023
| Building, metal and civil construction industries | |
| DEPUTY PRESIDENT GRAYSON | SYDNEY, 2 APRIL 2024 |
Application for approval of the Q H & M Birt Pty Ltd National Enterprise Agreement 2023
Introduction
Q.H. & M. Birt Pty. Ltd. has made an application for approval of an enterprise agreement known as the Q H & M Birt Pty Ltd National Enterprise Agreement 2023 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement.
Regulation 2.06 Requirements
The signature page of the Agreement did not comply in all respects with Regulation 2.06A of the Fair Work Regulations 2009 (Cth). An amended signature page was subsequently filed. I consider it appropriate in the circumstances to allow an amendment of a document relating to a matter before the FWC and do so pursuant to s.586(a) of the Act.
Notice of Employee Representational Rights
It appears that the version of the NERR that was provided to employees was a prior version (i.e. before the 6 June 2023 reforms). I am satisfied that employees were not likely to have been disadvantaged by the error and exercise my discretion to waive the error pursuant to s.188(5) of the Act.
National Employment Standards precedence term in Clause 1.5 of the Agreement
Clause 4.4 of the Agreement provides that in the event an employee fails to give the required period of notice to the employer, the employer has the right to withhold amounts payable to the employee equal to the period of notice not given. Clause 4.4 does not appear to limit the source of the monies which may be deducted. The effect of the clause appears to permit the employer to withhold monies owing to the employee under the NES (such as accrued but unused annual leave or long service leave on termination), which may be inconsistent with Chapter 2 Part 2.2 Division 2 of the Act.
I note that in accordance with the NES precedence term in Clause 1.5 of the Agreement, this clause will be read and interpreted in conjunction with the NES.
Non-continuous Shiftwork
On 5 March 2024, the Commission wrote to the employer seeking confirmation as to whether the employer rosters employees for non-continuous shiftwork, and subsequently received confirmation that the employer:
- Does not roster employees for non-continuous shiftwork; and,
- Does not have any intention to roster employees for non-continuous shiftwork.
Section 190 Undertakings
The employer provided written undertakings. A copy of the undertakings is attached in Annexure A. I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement and that the undertakings will not result in substantial changes to the Agreement. The undertakings are taken to be a term of the Agreement.
Section 186, 187, 188 and 190
Subject to the representation by the employer at [6] above, and the undertakings referred to at [7] above, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 as are relevant to this application for approval have been met.
Approval
The Agreement is approved and, in accordance with s.54 of the Act, will operate from 9 April 2024. The nominal expiry date of the Agreement is 2 April 2028.
DEPUTY PRESIDENT
Printed by authority of the Commonwealth Government Printer
<AE524043PR772952>
ANNEXURE A
0
0
0