SA Precast Pty Ltd
[2023] FWCA 2710
•24 AUGUST 2023
| [2023] FWCA 2710 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.185—Enterprise agreement
SA Precast Pty Ltd
(AG2023/2755)
SA PRECAST PTY LTD / CFMEU SOUTH AUSTRALIA ENTERPRISE AGREEMENT 2023
| Concrete precast industry | |
| DEPUTY PRESIDENT SLEVIN | SYDNEY, 24 AUGUST 2023 |
Application for approval of the SA Precast Pty Ltd / CFMEU South Australia Enterprise Agreement 2023
An application has been made for approval of an enterprise agreement known as the SA Precast Pty Ltd / CFMEU South Australia Enterprise Agreement 2023 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act) by SA Precast Pty Ltd. The Agreement is a single enterprise agreement.
The application was lodged outside the time required by s185(3)(a). The applicant attempted to file the application electronically within the 14 day period required by s185(3)(a) but the email attaching the application was not received by the Commission. There appears to have been a technical issue with the transmission of the email. Once the issue was identified, the applicant resent the application. In the circumstances I consider it fair to extend the period in which the application must be made by 3 days in accordance with s185(3)(b).
I was concerned that the following clauses of the Agreement may apply in a manner inconsistent with the National Employment Standards (NES):
clause 5.1 of the Agreement which expresses the entitlement to annual leave in days (20 days) rather than the required weeks (4 weeks) as per s.87 of the Act, and
clause 5.6 of the Agreement which does not extend the entitlement to compassionate leave to a de facto partner or sibling of the employee or a child, parent, grandparent, grandchild or sibling of a spouse or de facto partner of the employee.
In response the applicant has provided written undertakings. A copy of the undertakings is attached in Annexure A. A copy of the undertakings was provided to all bargaining representatives. No objection was raised. I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement and will not result in substantial changes to the Agreement. Pursuant to s.201(3), the undertakings are taken to be terms of the Agreement.
Subject to the undertakings, 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. The Agreement does not cover all of the employees of the employer, however, taking into account the factors in sections 186(3) and (3A) I am satisfied that the group of employees was fairly chosen.
The Construction, Forestry, Maritime, Mining & Energy 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.
The Agreement was approved on 24 August 2023 and, in accordance with s.54, will operate from 31 August 2023. The nominal expiry date of the Agreement at clause 1.6 is 30 June 2025.
DEPUTY PRESIDENT
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