Trend Windows And Doors Pty Ltd

[2023] FWCA 1322

[2023] FWCA 1322

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

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

Trend Windows And Doors Pty Ltd

(AG2023/1158)

TREND WINDOWS AND DOORS PTY LTD (SOUTH AUSTRALIA) ENTERPRISE AGREEMENT 2023-2026

Manufacturing and associated industries
COMMISSIONER PLATT	ADELAIDE, 9 MAY 2023

Application for approval of the Trend Windows and Doors Pty Ltd (South Australia) Enterprise Agreement 2023-2026

1. An application has been made for approval of an enterprise agreement known as the Trend Windows and Doors Pty Ltd (South Australia) Enterprise Agreement 2023-2026 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act) by Trend Windows And Doors Pty Ltd (the Applicant). The agreement is a single enterprise agreement.

1. The matter was allocated to my Chambers on 2 May 2023.

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

·   Deduction/withholding of monies due to the employee under the NES on termination – Clause 9.2(b) 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. We note that Clause 9.2(b) 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 9.2(b) may be inconsistent with Chapter 2 Part 2.2 Division 2 of the Act.

·   Public holidays – Clause 26 of the Agreement provides that that the employer and 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.

·   Personal Leave – Clause 21(vi) of the Agreement states that employees are expected to notify their supervisor before the start of the shift unless it is not reasonably practicable to do so but as far as reasonably practicable no later than 2 hours after commencement of shift. This appears to be inconsistent with s. 107(2) of the Act which provides that notification may be a time after the leave has started.

1. Clause 6.1 of the Agreement acts as an effective NES precedence clause, in that it states:

“The National Employment Standards apply to employees covered by this Agreement, except where this Agreement provides a more favourable outcome.

Additionally; if a term of this Agreement provides for an entitlement for an Employee (the Agreement entitlement) that is the same as an entitlement under the National Employment Standards (the NES entitlement):

The provisions of the NES relating to the NES entitlement apply, as a minimum standard, to the Agreement entitlement. For clarity; where there is an inconsistency between this Agreement and the NES, and the NES provides a greater benefit to the employee, the NES term will apply to the extent of the inconsistency.”

1. 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 Australian Workers’ Union (AWU) and the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) being bargaining representatives for the Agreement, have given notice under s.183 of the Act that they want the Agreement to cover them. In accordance with s.201(2) of the Act I note that the Agreement covers these organisations.

1. I am satisfied that each of the requirements of ss.186, 187, 188 and 190 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 31 March 2026.

COMMISSIONER

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