Ventia Australia Pty Ltd T/A Ventia Australia Pty Ltd

[2024] FWCA 1253

[2024] FWCA 1253

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

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

Ventia Australia Pty Ltd T/A Ventia Australia Pty Ltd

(AG2024/830)

VENTIA WA DEFENCE FACILITIES ENTERPRISE AGREEMENT 2024

Defence support
COMMISSIONER LIM	PERTH, 11 APRIL 2024

Application for approval of the Ventia WA Defence Facilities Enterprise Agreement 2024

1. Venetia Australia Pty Ltd T/A Venetia Australia Pty Ltd (the Applicant) has made an application for the approval of an enterprise agreement known as the Ventia WA Defence Facilities Enterprise Agreement 2024 (the Agreement). The application was made under s 185 of the Fair Work Act 2009 (Cth) (the Act).  The Agreement is a single enterprise agreement.

1. The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) (Amending Act) made a number of changes to enterprise agreement approval processes in Part 2-4 of the Act, that commenced operation on 6 June 2023. The notification time for the Agreement under s 173(2) was 21 June 2023 and the Agreement was made on 8 March 2024. Accordingly, both the genuine agreement and the better off overall test requirements are those applying on and from 6 June 2023.

1. The Applicant has provided written undertakings. A copy of the undertakings is attached in Annexure A. I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement and that the undertakings will not result in substantial changes to the Agreement.

1. In compliance with s 190(4) of the Act, the bargaining representative’s views regarding the undertakings proffered were sought. They were provided with the opportunity to raise and address any objections they had to the undertakings proffered by the Applicant. No objection was raised.

1. Subject to the undertakings referred to above, and on the basis of the material contained in the application and accompanying declarations, 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. I note that the following clauses in the Agreement appear to be inconsistent with the National Employment Standards (NES):

(a)The entitlement to compassionate leave provided by clause 22 of the Agreement does not appear to be triggered after the stillbirth of a child of the employee or a member of the employee’s immediate family or household as per s 105 (1) (b) of the Act or after the employee or the employee’s spouse or de facto partner has a miscarriage as per s 105 (1) (c) of the Act.

(b)Clause 32.4 of the Agreement provides that severance pay is not payable where the employer finds suitable alternative employment. However, the provision is not subject to an application under s 120 of the Act.

(c)Clause 12.2(a) of the Agreement excludes casual employees from receiving paid entitlements. Rather, casual employees will instead receive leave without pay in such circumstances. This is inconsistent with s 106A FW Act which provides 10 days paid domestic violence leave each 12-month period to all employees (i.e., full-time, part-time and casuals).

1. However, I am satisfied that under clause 4 of the Agreement, the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

1. The Communications, Electrical Electronic Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) and the Construction, Forestry and Maritime Employees Union (CFMEU) (together, the organisations), 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), and based on the declarations provided by the organisations, I note that the organisations are covered by the Agreement.

1. The Agreement was approved on 11 April 2024 and, in accordance with s 54, will operate from 18 April 2024.   The nominal expiry date of the Agreement is 21 May 2026.

COMMISSIONER

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