Ready Workforce (A Division of Chandler Macleod) Pty Ltd

[2022] FWCA 4319

[2022] FWCA 4319

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Ready Workforce (A Division of Chandler Macleod) Pty Ltd

(AG2022/4966)

Chandler Macleod (ASC Supplementary Labour) Agreement 2022

Industries not otherwise assigned
COMMISSIONER PLATT	ADELAIDE, 9 DECEMBER 2022

Application for approval of the Chandler Macleod (ASC Supplementary Labour) Agreement 2022

1. An application has been made for approval of an enterprise agreement known as the Chandler Macleod (ASC Supplementary Labour) Agreement 2022 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act) by Ready Workforce (A Division of Chandler Macleod) Pty Ltd (the Applicant). The agreement is a single enterprise agreement.

1. The matter was allocated to my Chambers on 5 December 2022.

1. On 8 December 2022, I conducted a telephone conference with the parties to seek clarification about aspects of the Agreement and invited the Applicant to address these matters including through the provision of an undertaking.

1. The Applicant has submitted an undertaking in the required form dated 7 December 2022. The undertaking deals with the following topics:

·   The definition of a shift worker will be for the purposes of the National Employment Standards (NES).

·   The Applicant has inserted a NES precedence clause.

·   Notwithstanding clause 2.1, the Agreement will operate from 7 days after approval.

1. A copy of the undertaking has been provided to the bargaining representatives and I have sought their views in accordance with s.190(4) of the Act. The bargaining representatives that responded did not object to the undertaking.

1. The undertaking appears to meet the requirements of s.190(3) of the Act and I have accepted it. As a result, the undertakings are taken to be a term of the Agreement.

1. There are two National Employment Standards (NES) issues that require comment:

·   Clause 31.3 the Agreement provides that by agreement between the company and an employee or employees concerned, other days may be substituted for any public holiday.  Section 115 of the Act provides that an employer and an individual employee can agree to a substituted public holiday, however does not extend the entitlement to more than one employee.

·   Clause 9.2(f) of the Agreement provides that if an employee fails to give notice the employer has the right to deduct monies due to the employee. This may reduce NES entitlements (e.g. accrued annual leave) and/or be inconsistent with s.324 of the Act.

1. The Applicant has provided an effective NES precedence undertaking, which states that in the event of an inconsistency between the Agreement and the NES, and the NES provides a greater benefit, the NES will apply to the extent of the inconsistency. As a result of the NES precedence undertaking, the above clauses will not apply to the extent that they are inconsistent with the NES.

1. The “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU), The Australian Workers’ Union (AWU) and the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU), 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) of the Act I note that the Agreement covers these organisations.

1. I am satisfied that each of the requirements of ss.186, 187, 188 and 190 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 and despite clause 2.1 of the Agreement, will operate from 7 days after the date of approval of the Agreement. The nominal expiry date is 26 March 2024.

COMMISSIONER

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