Swan Facade Services Pty Ltd
[2024] FWCA 1523
•5 JUNE 2024
| [2024] FWCA 1523 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement
Swan Facade Services Pty Ltd
(AG2024/1123)
SWAN FACADE SERVICES ENTERPRISE AGREEMENT WA 2024
| Cleaning services | |
| COMMISSIONER LIM | PERTH, 5 JUNE 2024 |
Application for approval of the Swan Facade Services Enterprise Agreement WA 2024
Swan Façade Services Pty Ltd (the Applicant) has made an application for the approval of an enterprise agreement known as the Swan Façade Services Enterprise Agreement WA 2024 (the Agreement). The application was made under s 185 of the Fair Work Act 2009 (Cth) (the Act). The Agreement is a single enterprise agreement.
The application was accompanied by a signature page that did not comply in all respects with Regulation 2.06A of the Fair Work Regulations 2009 (Cth). An amended signature page was subsequently filed. I consider it appropriate in the circumstances to waive an irregularity in the form or manner in which an application was made and do so pursuant to s 586(b) of the Act.
The Applicant has 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.
Subject to the undertakings referred to above, and on the basis of the material contained in the application and accompanying declarations, I am satisfied that each of the requirements of s 186, 187, 188, and 190 of the Act as are relevant to this application for approval have been met.
I note that the following clauses in the Agreement appear to be inconsistent with the National Employment Standards (NES):
(a)Clause 25.1.2 of the Agreement indicates that an employee may be required to work a public holiday, however, does not specify that an employee may refuse to work a public holiday where the request by the employer is unreasonable, or the refusal is reasonable. This may raise an inconsistency with s 114 (3) of the Act.
(b)Clause 12.4 of the Agreement sets out circumstances where an employee is deemed to have abandoned their employment but does not specify that an employee is entitled to payment of notice of termination in accordance with ss 117–123 of the Act.
However, I am satisfied that under clause 3.4 of the Agreement, the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.
The Agreement was approved on 5 June 2024 and, in accordance with s 54, will operate from 12 June 2024. The nominal expiry date of the Agreement is 1 December 2027.
COMMISSIONER
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ANNEXURE A
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