Saunders International Limited
[2023] FWCA 2707
•24 AUGUST 2023
| [2023] FWCA 2707 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement
Saunders International Limited
(AG2023/2651)
SAUNDERS INTERNATIONAL LIMITED NATIONAL MAINTENANCE AGREEMENT 2023
| Building, metal and civil construction industries | |
| DEPUTY PRESIDENT WRIGHT | SYDNEY, 24 AUGUST 2023 |
Application for approval of the Saunders International Limited National Maintenance Agreement 2023
Introduction
Saunders International Limited (the Employer) has made an application for approval of an enterprise agreement known as the Saunders International Limited National Maintenance Agreement 2023 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement.
Transitional arrangements under the Secure Jobs, Better Pay amendment
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. The notification time for the Agreement was before 6 June 2023.
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. The Agreement was made on 25 July 2023.
NES precedence term in Clause 4 of the Agreement
Clause 20.4 of the Agreement provides for compassionate leave when “a member of the Employee's immediate family or household contracts or develops a personal illness that poses a serious threat to his or her life or sustains a personal injury that poses a serious threat to his or her life or dies”. This may be inconsistent with s.104(1)(b) of the Act which provides that compassionate leave is also available when “a child is stillborn where the child would have been a member of the employee’s immediate family, or a member of the employee’s household, if the child had been born alive” and s.104(1)(c) of the Act which provides for compassionate leave where the employee, or the employee’s spouse or de facto partner, has a miscarriage. I note that in accordance with the NES precedence term in Clause 4 of the Agreement, this clause will be read and interpreted in conjunction with the NES.
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 undertakings referred to 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.
Section 183 Bargaining Representatives
The “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) 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 AMWU.
Approval
The Agreement is approved and, in accordance with s.54 of the Act, will operate from 31 August 2023. The nominal expiry date of the Agreement is 24 August 2027.
DEPUTY PRESIDENT
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