Stowe Australia Pty Limited
[2024] FWCA 3592
•14 OCTOBER 2024
| [2024] FWCA 3592 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.185—Enterprise agreement
Stowe Australia Pty Limited
(AG2024/3153)
STOWE AUSTRALIA PTY LIMITED - CANBERRA ENTERPRISE AGREEMENT 2024
| Electrical contracting industry | |
| DEPUTY PRESIDENT GRAYSON | SYDNEY, 14 OCTOBER 2024 |
Application for approval of the Stowe Australia Pty Limited - Canberra Enterprise Agreement 2024
Introduction
Stowe Australia Pty Limited (the Employer) has made an application for approval of an enterprise agreement known as the Stowe Australia Pty Limited - Canberra Enterprise Agreement 2024 (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 Act, that commenced operation on 6 June 2023. The notification time for the Agreement under s.173(2) was 25 June 2024 and the Agreement was made on 6 August 2024. Accordingly, both the genuine agreement and the better off overall test requirements are those applying on and from 6 June 2023.
Notice of Employee Representational Rights (NERR)
The NERR issued to employees was erroneous in that the name of the proposed enterprise agreement was incorrect. The Employer provided submissions that this matter constituted a minor technical error.
I am satisfied having regard to those submissions and the decision of the Full Bench in Huntsman Chemical Company Australia Pty Limited T/A RMAX Rigid Cellular Plastics & Others,[1] that these matters constituted minor technical or procedural errors for the purposes of s.188(5) of the Act, and that the employees covered by the Agreement were not likely to have been disadvantaged by the errors.
National Employment Standards (NES) Precedence Term
Clause 44 of the Agreement is to the effect that if an employee is absent for a period of 3 days either:
a.without the consent of the Company; or,
b.without notification to the Company; and,
c.the employee cannot establish, within 14 days, that they were absent for a reasonable cause;
the employee will be deemed as having abandoned their employment.
Clause 44 states that the termination shall operate from the last attendance at work or the last day’s absence in respect of which was granted, or the date of the last absence in respect of which notification was given to the Company, whichever is later. This clause may be inconsistent with the NES requirements that:
a.an employer must not terminate an employee’s employment without written notice of termination (at s.117(1)); and,
b.an employer must not terminate an employee’s employment without paying any applicable notice in lieu (excluding in circumstances of serious misconduct).[2]
Clause 43(vi) of the Agreement provides 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 43(vi) does not appear to limit the source from which 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). Accordingly, Clause 43(vi) may be inconsistent with Chapter 2 Part 2.2 Division 2 of the Act.
Clause 33.2 provides that redundancy pay is not payable where the employer finds suitable alternative employment. This clause does not appear to provide that such a variation to redundancy entitlements is subject to the approval of an application to the FWC pursuant to s.120 of the Act, and accordingly is inconsistent with the NES.
The Agreement contains a casual conversion clause at clause 11 which reflects the Act’s scheme prior to 26 August 2024. However, the casual conversion clause does not incorporate the changes available to casual employees employed after this date, and which take effect from February 2025 (which occurs during the Agreement’s nominal term).
I note that to the extent that these clauses may be inconsistent with the NES and in accordance with the NES precedence term at 12.2, these clauses will be read and interpreted in conjunction with the NES.
Delegates’ Rights Term
The Agreement does not contain a delegates’ rights term, as required by s.205A(1) of the Act. Pursuant to s.205A(2) of the Act, the workplace delegates’ rights term from the Electrical, Electronic and Communications Contracting Award 2020 is taken to be a term of the Agreement.
Flexibility Term
Clause 51.2(b) of the Agreement appears to contain a typographical error, which refers to ‘unlawful terms’ as per s.172 of the Act. On 11 September 2024, the Commission wrote to the parties identifying the issue (among others), seeking clarification as to whether clause 51.2(b) was intended to refer to s.194 of the Act and, if so, whether the Employer sought that the Commission correct the error pursuant to s.586 of the Act. On 4 October 2024, the Employer made submissions that the Commission should amend the error, and accordingly I have determined to correct the error as described.
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 Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) 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 CEPU.
Approval
The Agreement is approved and, in accordance with s.54 of the Act, will operate from 21 October 2024. The nominal expiry date of the Agreement is 14 October 2027.
DEPUTY PRESIDENT
ANNEXURE A
[1] [2019] FWCFB 318.
[2] Bienias v Iplex Pipelines Australia Pty Limited[2017] FWCFB 38 at [58].
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