Southern Star Windows Pty Ltd T/A Southern Star Windows Pty Ltd

[2024] FWCA 2739

[2024] FWCA 2739

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185 - Application for approval of a single-enterprise agreement

Southern Star Windows Pty Ltd T/A Southern Star Windows Pty Ltd

(AG2024/2165)

SOUTHERN STAR WINDOWS (VICTORIA) ENTERPRISE AGREEMENT 2024

Manufacturing and associated industries
COMMISSIONER CONNOLLY	MELBOURNE, 26 JULY 2024

Application for approval of the Southern Star Windows (Victoria) Enterprise Agreement 2024

1. An application has been made for approval of an enterprise agreement known as the Southern Star Windows Pty Ltd T/A Southern Star Windows Pty Ltd (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act) by Southern Star Windows (Victoria) Enterprise Agreement 2024 (the Applicant). The Agreement is a single enterprise agreement.

1. The matter was allocated to my Chambers on 21 June 2024.

1. The notification time for the Agreement under s.173(2) was 27 June 2023 and the Agreement was made on 3 June 2024.  Accordingly, the genuine agreement requirements the Agreement is to be assessed under are those applying after 6 June 2023 and the better off overall test (BOOT) is that applying on and from 6 June 2023. [1] 

1. On lodgement, the Applicant’s F16 form included a request for the Commission to exercise its discretion pursuant to s.586 of the Act to amend clause 1 of the Agreement to correct the title of the Agreement. With there being no objections to this, I am satisfied that it is appropriate to make this amendment and I do so. The published version of this Agreement includes the corrected clause and title.

1. On 24 June 2024, the Employer was invited to address aspects of the Agreement including through the provision of an undertaking.

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

• Notice of Termination – Apprentices: Agreement Clause 11.1(e) - Termination states it excludes apprentices from being given notice of termination, however apprentices are entitled to notice of termination under s117 of the Act.

• Annual Leave in Hours: Agreement Clause 31.2 provides for 152 hours (for full time employees) and 190 hours (for shiftworkers) of annual leave whereas the FW Act at s87(1)(a) provides 4 weeks. The employer adds this conversion is for administrative ease.

• Public Holidays: Clause 38.1(c)(i) provides that that the employer and majority of employees may agree to substitute a public holiday for another day. This is inconsistent with s.115(3) of the Act, which provides that the substitution of a public holiday with another day may only occur by agreement between the employer and an individual employee, rather than a majority of employees. Clause 38.1(c)(ii) does provide for substitution of a public holiday by agreement between the individual employee and the employer. Between these two clauses it is not specified which takes precedence.

• Deductions on Termination: Clause 19.2 of the agreement states that ‘the employer has the right to withhold any monetary amount due to the employee to a maximum amount equal to the amount the employee would have received under 11.1 (d)’. As this clause does not limit the deductions to wages only it raises the issue of deductions being made from the employee’s entitlements under the NES.

• Abandonment of Employment: Agreement Clause 15 provides abandonment of employment termination shall operate from the last attendance at work or the last day’s absence in respect of which consent was granted, or the date of the last absence in respect of which notification was given to the Company. This appears to be inconsistent with the NES at section 117 of the Act. The Clause heading states it is to be read with and operates subject to the NES.

1. As a result of the NES precedence clause provided in the undertakings, the above clauses will not apply to the extent that they are inconsistent with the NES.

1. The Applicant has provided written undertakings, dated 27 June 2024, and a copy is attached in Annexure A. 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 did not express any view on the undertaking.

1. I am satisfied that the undertaking will not cause financial detriment to any employee covered by the Agreement and that the undertaking will not result in substantial changes to the Agreement, thus appearing to meet the requirements of s.190(3). The undertaking is taken to be a term of the Agreement.

1. The “Construction, Forestry and Maritime Employees 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) of the Act I note that the Agreement covers this organisation.

1. I am satisfied that each of the requirements of ss.186, 187, 188, 190, 193 and 193A 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 30 September 2026.

COMMISSIONER

Annexure A

[1] The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) made a number of changes to enterprise agreement approval processes in Part 2-4 of the Fair Work Act. Those changes broadly commenced operation on 6 June 2023, subject to various transitional arrangements that included those to effect described above.

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