Tycab Australia Pty Ltd T/A Tycab Australia

[2023] FWCA 2703

[2023] FWCA 2703

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

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

Tycab Australia Pty Ltd T/A Tycab Australia

(AG2023/2733)

TYCAB SINGLE ENTERPRISE AGREEMENT 2023

Manufacturing and associated industries
COMMISSIONER CONNOLLY	MELBOURNE, 24 AUGUST 2023

Application for approval of the Tycab Single Enterprise Agreement 2023

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

1. The matter was allocated to my Chambers on 15 August 2023.

1. The notification time for the Agreement under s.173(2) was 23 March 2023 and the Agreement was made on 4 August 2023.  Accordingly, the genuine agreement requirements the Agreement is to be assessed under are those applying before 6 June 2023 and the better off overall test (BOOT) is that applying on and from 6 June 2023. [1] 

1. A concern was raised in relation to Clause 23.11 of the Agreement and whether this clause was inconsistent with s.324(1) of the Act. This clause provides the following:

“23.11 Granting Leave In Advance

a). An employer may by agreement with an employee allow long service leave to such employee before the right thereto has accrued due, but where leave is so taken the employee shall not become entitled to any further leave under this Part of the Agreement or to payment in lieu thereof for the period in respect of which such leave was taken before it accrued due.

b). Where leave has been granted to an employee pursuant to the preceding subclause before the right thereto has accrued due and the employment is subsequently terminated the employer may deduct from whatever remuneration is payable upon the termination of the employment such amount as represents payment for any period for which the employee has been granted leave to which he/she was not entitled at the date of termination of his/her employment.”

1. On 17 August 2023, the Employer was invited to address aspects of the Agreement. The Applicant elected not to make any submissions in relation to Clause 23.11.

1. In my view, this clause may not permit deductions within the meaning of s.324 of the Act, and pursuant to s.326 is likely to have no effect to the extent that it is not a permitted deduction. However, notwithstanding my views on this, it is not a matter to which I am to have regard in terms of whether or not the Agreement should be approved and does not represent a barrier to the approval of the Agreement.

1. The Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) and “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) 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, 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 30 June 2026.

COMMISSIONER

[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.

Printed by authority of the Commonwealth Government Printer

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