Wadjemup Unit Trust Pty Trading As Rottnest Express T/A Rottnest Express
[2024] FWCA 411
•31 JANUARY 2024
| [2024] FWCA 411 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.185—Enterprise agreement
Wadjemup Unit Trust Pty Trading As Rottnest Express T/A Rottnest Express
(AG2023/5430)
ROTTNEST EXPRESS ENTERPRISE AGREEMENT 2024
| Marine tourism and charter vessels | |
| COMMISSIONER LIM | PERTH, 31 JANUARY 2024 |
Application for approval of the Rottnest Express Enterprise Agreement 2024
Wadjemup Unit Trust Pty Trading (the Applicant) has made an application for the approval of an enterprise agreement known as the Rottnest Express 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.
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 Fair Work Act, that commenced operation on 6 June 2023. The notification time for the Agreement under s.173(2) was 30 June 2023 and the Agreement was made on 8 December 2023. Accordingly, both the genuine agreement and the better off overall test requirements are those applying on and from 6 June 2023.
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.
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.
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.
I note that Clause 8.7 appears to provide that in the case of termination, if employees do not give notice, the Employer may withhold from any monies due, an amount not exceeding the amount the employee would have been paid under this Agreement in respect of the period of notice. I note that this 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. This raises the issue that this clause may be inconsistent with Chapter 2 Part 2.2 Division 2 of the Act.
Clause 20.2 provides that when a public holiday falls on Saturday on Sunday, it shall be observed on the actual day and will not be substituted to another day. This appears non-compliant with s 115 of the Act. Additionally, Clause 18 of the Agreement provides compassionate leave where a member of an employee’s immediate family or household contracts or develops a serious illness or sustains a serious injury or dies. However it is silent in relation to compassionate leave for stillbirth/miscarriage as is provided by s 104(1)(b) and (c) of the Act
However, I am satisfied that under clause 27 of the Agreement, the more beneficial entitlements of the National Employment Standards (NES) will prevail where there is an inconsistency between the Agreement and the NES.
The Agreement was approved on 31 January 2024 and, in accordance with s 54, will operate from 7 February 2024. The nominal expiry date of the Agreement is 31 January 2027.
COMMISSIONER
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ANNEXURE A
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