Qenos Pty Ltd
[2023] FWCA 2447
•8 AUGUST 2023
| [2023] FWCA 2447 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.185—Enterprise agreement
Qenos Pty Ltd
(AG2023/2475)
APPLICATION FOR APPROVAL OF THE AWU\MEU QENOS BOTANY OPERATIONS ENTERPRISE AGREEMENT 2022
| Manufacturing and associated industries | |
| DEPUTY PRESIDENT MASSON | MELBOURNE, 8 AUGUST 2023 |
Application for approval of the AWU|MEU Qenos Botany Operations Enterprise Agreement 2022.
An application has been made for approval of an enterprise agreement known as the AWU\MEU QENOS BOTANY OPERATIONS ENTERPRISE AGREEMENT 2022 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Qenos Pty Ltd. The Agreement is a single enterprise agreement.
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.
Under transitional arrangements, amendments made by Part 14 of Schedule 1 to the Amending Act in relation to genuine agreement requirements for agreement approval applications apply where the notification time for the agreement was on or after 6 June 2023. The genuine agreement provisions in Part 2-4 of the Fair Work Act, as it was just before 6 June 2023, continue to apply in relation to agreement approval applications where the notification time for the agreement was before 6 June 2023. Question 18 of the Form F17B provides that the notification time for the Agreement was 11 July 2022.
Under transitional arrangements, amendments made by Part 16 of Schedule 1 to the Amending Act in relation to the better off overall test requirements for agreement approval applications apply where the agreement was made on or after 6 June 2023. The better off overall test provisions in Part 2-4 of the Fair Work Act, as it was just before 6 June 2023, continue to apply in relation to agreement approval applications where the agreement was made before 6 June 2023. Question 28.2 of the Form F17B provides that the Agreement was made on 15 July 2023.
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.
I note that several clauses may be inconsistent with the National Employment Standards. Given the National Employment Standards precedence clause at clause 4 of the Agreement, I am satisfied that the more beneficial entitlements of the NES will prevail.
The Applicant seeks to vary the wording in the paragraph under the heading Planning & Recording of Leave – Leave plans at Appendix 5 by removing the reference to RDOs, as the current drafting does not correctly capture the intent of the Appendix. The Applicant has sought that the Commission exercise its discretion pursuant to s.218A of the Act to amend an obvious error, defect or irregularity. I am satisfied that the error in Appendix 5 is an obvious error, defect or irregularity and I will amend the Agreement accordingly pursuant to s. 218A of the Act.
The Australian Workers’ Union and the Construction, Forestry, Maritime, Mining and Energy Union being bargaining representatives for the Agreement, have given notice under s.183 of the Act that they want the Agreement to cover them. In accordance with s.201(2) I note that the Agreement covers these organisations.
The Agreement is approved and, in accordance with s.54 of the Act, will operate from 15 August 2023. The nominal expiry date of the Agreement is 30 September 2026.
DEPUTY PRESIDENT
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