Thiess Pty Ltd T/A Thiess Pty Ltd

[2024] FWCA 433

[2024] FWCA 433

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

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

Thiess Pty Ltd T/A Thiess Pty Ltd

(AG2023/5442)

THIESS COMPONENT REBUILD CENTRE DARRA ENTERPRISE AGREEMENT 2023

Mining industry
COMMISSIONER CONNOLLY	MELBOURNE, 1 FEBRUARY 2024

Application for approval of the Thiess Component Rebuild Centre Darra Enterprise Agreement 2023

1. An application has been made for approval of an enterprise agreement known as the Thiess Component Rebuild Centre Darra Enterprise Agreement 2023 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act) by Thiess Pty Ltd T/A Thiess Pty Ltd (the Applicant). The Agreement is a single enterprise agreement.

1. The matter was allocated to my Chambers on 15 January 2024.

1. The notification time for the Agreement under s.173(2) was 26 September 2023 and the Agreement was made on 19 December 2023.  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 18 January 2024, the Employer was invited to address aspects of the Agreement including through the provision of an undertaking.

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

·   Personal Leave& Compassionate Leave: Clause 23.3.2 (Personal Leave) and 24.4 (Compassionate Leave) request employees to notify their supervisor or company, as soon as reasonably practicable, prior to the first shift affected. This appears to be inconsistent with s.107(2) of the Act which states notice must be given to the employer as soon as practicable (which may be a time after the leave has started). 

·   Compassionate leave: Clause 24 provides for compassionate leave; however it is silent is relation to the entitlement to when the employee, their spouse, or de facto partner has a miscarriage or gives birth to a stillborn child. This may be inconsistent with s 104(1)(c) of the Act. 

·   Redundancy: Clause 30.9 of the Agreement provides that the entitlements set out in the Redundancy clause will not apply to employees who are offered acceptable alternative employment by the Employer. This clause does not appear to provide that it is subject to the FWC, as required by s.120 of the Act. We note clause 30.10 may provide a safeguard where ‘exemptions from redundancy are in accordance with the Act’. 

1. Clause 3.1 of the Agreement acts as an effective NES precedence clause, in that it states that “Unless where otherwise provided for, where there is an inconsistency between this Agreement and the NES, and the NES provides a greater benefit, the NES provision will apply to the extent of the inconsistency”. As a result of the NES precedence clause, the above clause(s) will not apply to the extent that they are inconsistent with the NES.

1. The Applicant has provided written undertakings, dated 23 January 2024, and a copy is attached in Annexure A. A copy of the undertaking has been provided to the bargaining representative(s) and I have sought their views in accordance with s.190(4) of the Act. The bargaining representative(s) 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. As the Agreement does not contain a flexibility term which meets the requirements of s.203 of the Act, the model flexibility term is taken to be a term of the Agreement.

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 1 February 2027.

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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