Valvoline (Australia) Pty Ltd

[2019] FWCA 7777

[2019] FWCA 7777

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement

Valvoline (Australia) Pty Ltd
(AG2019/3632)

VALVOLINE (AUSTRALIA) PTY LIMITED 2019 - 2021 CLERICAL COLLECTIVE ENTERPRISE AGREEMENT

Oil and gas industry
DEPUTY PRESIDENT BULL	SYDNEY, 13 NOVEMBER 2019

Application for approval of the Valvoline (Australia) Pty. Limited 2019 - 2021 Clerical Collective Enterprise Agreement.

[1] An application (Form F16) has been filed by Valvoline (Australia) Pty Ltd(the employer) for the approval of an enterprise agreement known as the Valvoline (Australia) Pty. Limited 2019 - 2021 Clerical Collective Enterprise Agreement (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single-enterprise agreement as per s.172(2) of the Act.

[2] The Commission raised with the employer an ambiguity regarding casual loading in the Agreement. Clause 6(3)(a) of the Agreement refers to casual loading as being 25% whereas clause 20(d) of the Agreement refers to casual loading as being 20%. The employer in response advised that, notwithstanding what is written at clause 20(d) of the Agreement, the casual loading is 25% in accordance with clause 6(3)(a) of the Agreement.

[3] Section 186(2)(c) of the Act states that the Commission must be satisfied, before approving an agreement, that terms of an agreement do not contravene s.55 of the Act, which provides that an agreement must not exclude a provision of the National Employment Standards (NES). 1

[4] I observe that the following provisions are likely to be inconsistent with the National Employment Standards (NES):

● Clause 10(a)(ii) of the Agreement provides that employees must notify an absence on personal leave within 24 hours. This appears to be contrary to s.107 of the Act which requires employees to notify of absence on personal leave as soon as reasonably practical, which may be a time after the leave has started.

● Clause 10(b)(ii) of the Agreement provides that in normal circumstances an employee must not take carer’s leave where another person has taken leave to care for the same person. Nothing in Part 2-2 Division 7 of the Act, relating to personal leave, appears to impose this restriction.

● Clause 10(b)(iii)(e) of the Agreement defines household as a family group (where family means a person related by blood, marriage or affinity) living in the same domestic dwelling. The Act does not appear to offer a definition of ‘household’ and the Agreement’s definition of ‘household’ could therefore restrict an employee’s entitlement to carer’s leave in Part 2-2 Division 7 of the Act.

● Clause 11 of the Agreement does not allow compassionate leave for household members. This appears to be contrary to s.104 of the Act which provides compassionate leave where a member of the employee’s household suffers a life-threatening illness or injury or dies.

● Clause 22(c) of the Agreement provides that abandonment of employment operates from the date of last attendance, last absence with consent, or last date of notification. This may have the effect of removing an employee’s entitlement under s.117 of the Act to notice of the date of termination, which may not be a date before the notice is given, or payment in lieu.

[5] Clause 5(c) of the Agreement, however, specifically incorporates the NES, and states that the NES apply to employees covered by the Agreement as a minimum standard. I am therefore satisfied, as required by s 186(2)(c) of the Act, that the terms of the Agreement do not contravene s.55 of the Act.

[6] It is further noted that s.56 of the Act provides that any NES-offending provisions in an agreement cannot have effect.

[7] I am satisfied that each of the requirements of ss.186, 187, and 188 as are relevant to this application for approval have been met.

[8] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 7 days from the date of approval. The nominal expiry date of the Agreement is 30 September 2021.

DEPUTY PRESIDENT

 1 See s.55(1) of the Fair Work Act 2009

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