Stegbar Pty Ltd
[2024] FWCA 3751
•28 OCTOBER 2024
| [2024] FWCA 3751 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement
Stegbar Pty Ltd
(AG2024/3778)
STEGBAR PTY LTD ROWVILLE SHOWER SCREENS & ROBES DIVISION ENTERPRISE AGREEMENT 2024
| Joinery industry | |
| DEPUTY PRESIDENT WRIGHT | SYDNEY, 28 OCTOBER 2024 |
Application for approval of the Stegbar Pty Ltd Rowville Shower Screens & Robes Division Enterprise Agreement 2024
Introduction
Stegbar Pty Ltd (the Employer) has made an application for approval of an enterprise agreement known as the Stegbar Pty Ltd Rowville Shower Screens & Robes Division Enterprise Agreement 2024 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement.
The Agreement will apply to employees who are covered by the Joinery and Building Trades Award 2020 (the Award).
National Employment Standards (NES) Issues
The Commission raised the following issues with the Employer relating to provisions which may be less beneficial than the NES:
Clause 16.1.8 of the Agreement provides that severance pay is not payable where the employer finds suitable alternative employment however the provision is not subject to an application under s. 120 of the Act.
Clause 20 of the Agreement states that if the employee fails to give the required notice of termination to the employer, the employer has the right to withhold from an employee’s termination pay an amount that is equal to the period of notice not given. Clause 20 does not appear to limit the source of monies which may be deducted. The effect of this is that this clause appears to permit the employer to withhold monies owing to the employee under the NES (such as accrued but unused annual leave or long service leave on termination). This raises the issue that Clause 20 may be inconsistent with Chapter 2 Part 2.2 Division 2 of the Act.
Clause 29 of the Agreement states that an employee is entitled to accrue 20 days of annual leave, inconsistent with s.87(1) of the Act which specifies annual leave in weeks.
Clause 35.4 of the Agreement provides that the employer and a majority of affected employees may agree to substitute a public holiday for another day. This appears to be 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.
Better off Overall Test (BOOT) Issues
The Commission raised the following issues with the Employer which are relevant to whether employees are better off overall under the Agreement compared to the Award:
The rates of pay for Year 1, 2 and 3 Adult apprentices appear to fall below the Award.
The span of hours appears to be different than the Award. Clause 25.1 of the Agreement provides a span of 5:00am and 5:00pm Monday to Friday whereas Clause 16.2 of the Award provides a span of 6am to 7pm Monday to Friday. This appears to be a concern for employees beginning work at 5:00am where penalties or overtime otherwise would have applied under the Award.
Clause 28.4.2 of the Agreement provides that work performed by a shiftworker on a Saturday, except the continuation of a shift which commenced on the preceding day, shall be considered as overtime, and paid for at the rate of time and a half for the first three hours and double time thereafter, provided that any work performed after 12 noon on a Saturday shall be paid for at the rate of double time. In contrast, the Award provides that all work performed as overtime by shiftworkers is payable at 200%.
Section 190 Undertakings
The employer provided written undertakings to address the above NES and BOOT issues. A copy of the undertakings is attached in Appendix III. 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 Construction, Forestry and Maritime Employees Union (CFMEU) 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 CFMEU.
Approval
The Agreement is approved and, in accordance with s.54 of the Act, will operate from 4 November 2024. The nominal expiry date of the Agreement is 1 July 2027.
DEPUTY PRESIDENT
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