Turosi Pty Ltd

[2023] FWCA 2

[2023] FWCA 2

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Turosi Pty Ltd

(AG2022/5292)

TUROSI PTY LTD BROADMEADOWS ENTERPRISE AGREEMENT 2022

Manufacturing and associated industries
COMMISSIONER PLATT	ADELAIDE, 3 JANUARY 2023

Application for approval of the Turosi Pty Ltd Broadmeadows Enterprise Agreement 2022

1. An application has been made for approval of an enterprise agreement known as the Turosi Pty Ltd Broadmeadows Enterprise Agreement 2022 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act) by Turosi Pty Ltd (the Applicant). The agreement is a single enterprise agreement.

1. The matter was allocated to my Chambers on 22 December 2022 and was determined on the papers.

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

·   Clause 30.3 of the Agreement provides for compassionate leave, however, is silent in 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 appears to be inconsistent with s.104(1)(c) of the Act.

·   Clause 24 of the Agreement provides that an employee who is absent from work for three consecutive working days without notifying the company shall be assumed to have abandoned their employment. This appears to be inconsistent with s.117 of the Act.[1]

1. Clause 5 of the Agreement acts as an effective NES precedence clause, in that it states that where there is any inconsistency between the Agreement and the NES, the more beneficial provision to an employee shall take precedence. As a result of the NES precedence clause, the above clauses will not apply to the extent that they are inconsistent with the NES.

1. The Applicant has submitted an undertaking in the required form dated 29 December 2022. The undertaking deals with the following topics:

·  The notice of termination required to be given by an employee is the same as that required of the company except that there is no requirement on the employee to give additional notice based on the age of the employee concerned. If an employee who is at least 18 years old does not give the period of notice required under clause 20.1 of the Agreement, then the employer may deduct from wages due to the employee under the Agreement an amount that is no more than one week’s wages for the employee, unless a shorter notice period has been agreed by the employer.

1. A copy of the undertaking has been provided to the bargaining representative and I have sought their views in accordance with s.190(4) of the Act. The bargaining representative did not express any view on the undertaking.

1. The undertaking appears to meet the requirements of s.190(3) of the Act and I have accepted it. As a result, the undertakings are taken to be a term of the Agreement.

1. The Australasian Meat Industry Employees Union (AMIEU), 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) of the Act I note that the Agreement covers this organisation.

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 30 November 2025.

COMMISSIONER

[1] Bienias v Iplex Pipelines Australia Pty Limited[2017] FWCFB 38 at [58].

Printed by authority of the Commonwealth Government Printer

<AE518766  PR749343>