U-Neek Bending Co Pty Ltd

[2023] FWCA 2797

[2023] FWCA 2797

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

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

U-Neek Bending Co Pty Ltd

(AG2023/2748)

U-NEEK BENDING CO PTY LTD ENTERPRISE AGREEMENT 2023

Manufacturing and associated industries
COMMISSIONER CONNOLLY	MELBOURNE, 31 AUGUST 2023

Application for approval of the U-Neek Bending Co Pty Ltd Enterprise Agreement 2023

1. An application has been made for approval of an enterprise agreement known as the U-Neek Bending Co Pty Ltd Enterprise Agreement 2023 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act) by U-Neek Bending Co Pty Ltd (the Applicant). The Agreement is a single enterprise agreement.

1. The matter was allocated to my Chambers on 21 August 2023.

1. The notification time for the Agreement under s.173(2) was 8 May 2023 and the Agreement was made on 28 July 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. On 22 August 2023, the Employer was invited to address aspects of the Agreement.

1. The Agreement was not lodged within 14 days after it was made. The Employer provided submissions on 29 August 2023 as to the explanation for the late lodgement. Based on those submissions, pursuant to s.185(3)(b) of the Act, I consider it fair to extend the time for making this application to 14 August 2023 (the lodgement date).

1. The Agreement title in the Notice of Employee Representational Rights (NERR) distributed to the employees differs from the title of the Agreement stated in Clause 1 of the Agreement lodged. On 29 August 2023, the Employer made submissions stating this was a minor and technical error and the Agreement lodged contained the correct title. Having considered these submissions, I do not believe that this error in the NERR had the effect of disenfranchising any employee who is covered by the proposed Agreement from participation in the bargaining process. I am satisfied (taking into consideration s.188(2) of the Act and the decision in Huntsman Chemical Company Australia Pty Limited T/A RMAX Rigid Cellular Plastics & Others) that the procedural or technical error is minor and that the employees were not likely to have been disadvantaged, and accordingly, that there has been a genuine agreement.

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

·   Casual Conversion: Clause 18.1 provides that if a casual employee continues beyond the period of 24 weeks, he/she will thereafter be deemed to be engaged on a weekly hire as a full-time employee. This raises an inconsistency with the Act at S66B (1) where an employer ‘must make an offer to a casual employee’. The Agreement does not appear to offer casual employees the choice to convert to permanent employment (noting the Act also provides for part-time employment which is not offered) upon completing 24 weeks.

·   Withholding of NES Entitlements on Termination: Clause 32.2 (b) states ‘Subject to financial obligations imposed on an employer by the Act, if an employee fails to give notice the employer will have the right to withhold moneys due to the employee with a maximum amount equal to the ordinary time rate of pay for the period of notice from any money due to the employee under this Agreement.’ The clause 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 32.2 (b) may be inconsistent with Chapter 2 Part 2.2 Division 2 of the Act.

1. Clause 5 of the Agreement acts as an effective NES precedence clause, in that it states that “The Agreement will be read in conjunction with the NES. 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 clauses will not apply to the extent that they are inconsistent with the NES.

1. The “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU), 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, 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.

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