Rapid Metal Developments (Australia) Pty Ltd

[2022] FWCA 1668

[2022] FWCA 1668

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Rapid Metal Developments (Australia) Pty Ltd

(AG2022/1426)

Rapid Metal Developments (Australia) Pty Ltd (Adelaide Yard Branch) Enterprise Agreement 2022

Manufacturing and associated industries
COMMISSIONER PLATT	ADELAIDE, 20 MAY 2022

Application for approval of the Rapid Metal Developments (Australia) Pty Ltd (Adelaide Yard Branch) Enterprise Agreement 2022

1. An application has been made for approval of an enterprise agreement known as the Rapid Metal Developments (Australia) Pty Ltd (Adelaide Yard Branch) Enterprise Agreement 2022 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act) by Rapid Metal Developments (Australia) Pty Ltd (the Applicant). The agreement is a single enterprise agreement.

1. The matter was allocated to my Chambers on 18 May 2022.

1. On 20 May 2022, I conducted a telephone conference with the Applicant to seek clarification about aspects of the Agreement. At the conclusion of the conference, the Applicant provided further information which satisfied me that the requirements of s.180(3) of the Act in relation to the provision of the details of the vote had been met.

1. It is noted that the Agreement is silent with respect to a definition of shiftworker for the purpose of the National Employment Standards (NES). The Applicant confirmed at the conclusion of the conference that the Applicant does not employ shiftworkers, and that any hours worked outside of the hours of work outlined in clause 14(a) of the Agreement will be paid at overtime rates.

1. Clause 30.4 of the Agreement states that where an employee fails to give notice of termination, the employer may deduct, from any monies owing to the employee on termination, an amount equivalent to the notice not provided. It is noted that clause 30.4 of the Agreement will only have effect to the extent that any deduction is consistent with the requirements of ss.324-326 of the Act.

1. There are two NES issues that require comment:

·   Clause 21.5 of the Agreement provides for annual leave loading, however, states it is not paid out on termination. This appears inconsistent with s.90(2) of the Act which states that when employment ends and the employee has a period of untaken annual leave, the employer must pay the employee the amount payable had the employee taken the leave.

·   Clause 31 of the Agreement states that where an employee is absent from work for more than three continuous days without consent of the employer or notification to the employer, the employer will terminate the employee’s employment without notice. This appears inconsistent with notice of termination requirements contained in s.117 of the Act.

1. Clause 8 of the Agreement acts as an effective NES precedence clause, in that it states that if the Agreement could be interpreted as providing a less favourable outcome to employees, then the NES will apply to the extent of the inconsistency. As a result of clause 8 of the Agreement, the above clauses will not apply to the extent that they are inconsistent with the NES.

1. 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.

1. The Agreement is approved and, in accordance with s.54 of the Act, will operate from 7 days after the date of approval of the Agreement. The nominal expiry date is 1 February 2026.

COMMISSIONER

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