Ventia (Australia) Pty Ltd

[2024] FWCA 4478

[2024] FWCA 4478

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Ventia (Australia) Pty Ltd

(AG2024/4689)

VENTIA DMC ENTERPRISE AGREEMENT 2024

Manufacturing and associated industries
COMMISSIONER SLOAN	SYDNEY, 13 DECEMBER 2024

Application for approval of the Ventia DMC Enterprise Agreement 2024

1. Ventia (Australia) Pty Ltd (“Employer”) has made an application for approval of an enterprise agreement known as the Ventia DMC Enterprise Agreement 2024 (“Agreement”). The application is made under s 185 of the Fair Work Act 2009 (“Act”). The Agreement is a single enterprise agreement.

2. The Australian Manufacturing Workers Union (“AMWU”) was a bargaining representative for the Agreement. It has raised a concern as to the enforceability of a particular provision of the Agreement. It is not necessary for me to traverse that matter. It does not present an impediment to the approval of the Agreement, and the AMWU does not contend otherwise. In fact, the AMWU supports approval of the Agreement. I understood the AMWU’s submissions to reflect the union preserving its position on the provision, notwithstanding its support for approval of the Agreement.

3. Clause 8.2 of the Agreement provides that its nominal expiry date is “4 years from the date of operation of the Agreement”. However, s 186(5)(b) of the Act provides that the nominal expiry date cannot be more than 4 years after the Commission approves the Agreement. Under s 54(1)(a) of the Act, the Agreement operates from 7 days after the date it is approved. On its terms, clause 8.2 provides for a nominal term that is 7 days longer than the term permitted by s 186(5)(b).

1. In my view this is an “obvious error” capable of being amended under s 218A of the Act. The parties were informed that I proposed to act on my own initiative under s 218A(2)(a) to effect that amendment, which would entail the word “operation” in clause 8.2 being replaced with “approval”. The parties were invited to raise any objections they had to me doing so. None of them did so. I will amend the Agreement accordingly.

1. Clause 30.1.5 of the Agreement appears to provide that an employee will not be entitled to compassionate leave if it would coincide with any other leave period. This is inconsistent with s 89(2) of the Act, which deals with the interaction between annual leave and other forms of leave. Having noted that, clause 6 of the Agreement provides that where there is an inconsistency between the Agreement and the National Employment Standards, and the NES provides a greater benefit to employees, the NES will prevail to the extent of the inconsistency. This should ensure that clause 30.1.5 is not applied in a manner contrary to the NES. In raising the issue, it is my intention to ensure that this is the case

1. Having regard to the material in the application and accompanying declaration, I am satisfied that each of the requirements of ss 186, 187, 188 and 190 of the Act as are relevant to the application for approval have been met.

2. The AMWU has given notice under s 183 of the Act that it wants the Agreement to cover it. As required by s 201(2) of the Act, I note that the Agreement covers the AMWU.

Orders

1. Pursuant to s 218A of the Act, I order that the Agreement be varied by deleting “operation” where it appears in clause 8.2 and replacing it with “approval”. That variation will operate from the date of this decision.

1. The Agreement is approved. In accordance with s 54 of the Act, the Agreement will operate from 20 December 2024. The nominal expiry date of the Agreement is 13 December 2028.

COMMISSIONER

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