Sutton Tools Pty Ltd

[2024] FWCA 2943

[2024] FWCA 2943

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Sutton Tools Pty Ltd

(AG2024/2756)

SUTTON TOOLS PTY LTD (MANUFACTURING) ENTERPRISE AGREEMENT 2024

Manufacturing and associated industries
COMMISSIONER TRAN	MELBOURNE, 9 AUGUST 2024

Application for approval of the Sutton Tools Pty Ltd (Manufacturing) Enterprise Agreement 2024

1. Sutton Tools Pty Ltd has applied for approval of an enterprise agreement known as Sutton Tools Pty Ltd (Manufacturing) Enterprise Agreement 2024 (the Agreement) under s 185 of the Fair Work Act 2009 (Act).

1. The Agreement is a single enterprise agreement.

1. The Agreement does not contain a comprehensive delegates’ rights term, as required by s 205A(1) of the Act. Under s 205A(2) of the Act, the workplace delegates’ rights term in Clause 40A of the Manufacturing and Associated Industries and Occupations Award 2020 is taken to be a term of the Agreement.

1. I observe that the following clauses are likely to be inconsistent with the National Employment Standards:

• Clause 15.1.1 – Notice of Termination provides a lower entitlement than that provided by s 117(3) of the Act; and

• Clause 18 – Abandonment of employment does not provide for notice in accordance with s 117 of the Act; and

• Clause 39.1.1 – Annual Leave limits when annual leave can be taken which is inconsistent with s 87 of the Act. This clause also expresses annual leave in days rather than weeks, which is inconsistent with s 87(1) of the Act; and

• Clause 39.1.2 – Annual Leave may be inconsistent with s 87(2) as the clause provides for annual leave accruing on a per week basis at 2.923 hours per week, rather than progressively during a year of service; and

• Clause 42.3.1(c) – Family and Domestic Violence Leave is silent on the 10 days of paid family and domestic violence leave provided for by s 106A of the Act; and

• Clause 43 – Compassionate Leave does not provide for circumstances relating to stillbirth or miscarriage as required by s 104(1)(b) and (c) of the Act; and

  • Clause 47.4.1 – Public Holidays contains more restrictive public holiday substitution than s 115(3) of the Act, which enables individual employees to substitute public holidays by agreement with their employer.

1. The Agreement contains an effective NES precedence clause at Clause 6 of the Agreement. I am satisfied that the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

1. Subject to the matters referred to above, I am satisfied that each of the requirements of ss 186, 187 and 188 as are relevant to this application for approval have been met.

1. 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 organisation.

1. The Agreement is approved and, in accordance with s 54 of the Act, will operate from 16 August 2024.

1. In accordance with Clause 4, the nominal expiry date of the Agreement is 30 June 2027.

COMMISSIONER

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