Vesuvius Australia Pty Ltd T/A Vesuvius

[2023] FWCA 1051

[2023] FWCA 1051

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Vesuvius Australia Pty Ltd T/A Vesuvius

(AG2023/822)

VESUVIUS AUSTRALIA PORT KEMBLA EMPLOYEES ENTERPRISE AGREEMENT 2021

Manufacturing and associated industries
DEPUTY PRESIDENT MILLHOUSE	MELBOURNE, 12 APRIL 2023

Application for approval of the Vesuvius Australia Port Kembla Employees Enterprise Agreement 2021

1. An application has been made for approval of an enterprise agreement known as the Vesuvius Australia Port Kembla Employees Enterprise Agreement 2021 (Agreement). The application was made pursuant to s 185 of the Fair Work Act 2009 (Cth) (Act). It has been made by Vesuvius Australia Pty Ltd T/A Vesuvius (Employer). The Agreement is a single enterprise agreement.

1. The Employer 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. The undertakings are taken to be a term of the Agreement.

1. Subject to the undertakings referred to above, I am satisfied that each of the requirements of ss 186, 187, 188 and 190 as are relevant to this application for approval have been met.

1. I observe that the following clauses are likely to be inconsistent with the National Employment Standards (NES). However, noting clause 7 of the Agreement, I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES:

• Clause 15.2(i) provides that an employee shall give notice of their inability to attend work at least one (1) hour prior to the commencement of the rostered shift. This appears to provide a more stringent notice requirement than permitted by s 107(2)(a) of the Act, which provides that the notice must be given to the Employer as soon as practicable (which may be a time after the leave has started). However, it is noted that the clause recognises that exceptional circumstances may prevent employees meeting these notification requirements.  

• Clause 15.2(1) provides that an employee will provide evidence to the Employer’s satisfaction. This is inconsistent with the evidence requirements set out in s 107 of the Act.
• Clause 15.4 is inconsistent with compassionate leave as provided in the NES as it omits that a stillbirth or miscarriage is a permissible occasion.

1. The Construction, Forestry, Maritime, Mining and Energy Union and the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union, being bargaining representatives for the Agreement, have both given notice under s 183 of the Act that they want the Agreement to cover them. In accordance with s 201(2) I note that the Agreement covers the organisations.

1. The Agreement is approved and, in accordance with s 54 of the Act, will operate from 19 April 2023. The nominal expiry date of the Agreement is 31 December 2023.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<AE519713  PR761024>

Annexure A