Wastech Engineering Pty Ltd T/A Wastech Engineering Pty Ltd
[2024] FWCA 3729
•25 OCTOBER 2024
| [2024] FWCA 3729 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.185—Enterprise agreement
Wastech Engineering Pty Ltd T/A Wastech Engineering Pty Ltd
(AG2024/3203)
WASTECH ENGINEERING PTY LTD MANUFACTURING WORKPLACE AGREEMENT 2024-2027
| Manufacturing and associated industries | |
| COMMISSIONER FOX | MELBOURNE, 25 OCTOBER 2024 |
Application for approval of the Wastech Engineering Pty Ltd Manufacturing Workplace Agreement 2024-2027.
An application has been made for approval of an enterprise agreement known as the Wastech Engineering Pty Ltd Manufacturing Workplace Agreement 2024-2027 (the Agreement). The Application was made pursuant to s.185 of the Fair Work Act 2009 (Cth) (the Act). It has been made by Wastech Engineering Pty Ltd (the Employer). The Agreement is a single enterprise agreement.
The application originally named the employer as Jacqueline Edser T/A Wastech Engineering Pty Ltd. Following a Mention Hearing on 16 October 2024, and with the consent of the parties, I determined it appropriate under s.586(a) of the Act to amend the name of the Employer to Wastech Engineering Pty Ltd T/A Wastech Engineering Pty Ltd.
The Form F17B indicated that employees were notified of the details of the vote on 7 August 2024. I note that the vote commenced less than seven clear days later, on 13 August 2024. To satisfy the requirements under s.186(2)(a) that the Agreement was genuinely agreed to by the employees, the Commission must consider whether the employer has taken all reasonable steps to explain the Agreement to the employees and that the explanation was provided in a manner appropriate to the circumstances and needs of the employees per s.188(1) and s.180(5), as well as paragraphs 8 to 14 of the Statement of Principles on Genuine Agreement. In the circumstances, I am satisfied that despite the shorter access period, employees were not likely to be disadvantaged, and the Agreement was genuinely agreed to.
The Employer has provided written undertakings. A copy of the undertakings is attached at 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.
Subject to the undertakings referred to above, I am satisfied that each requirement of ss.186, 187, 188 and 190 as are relevant to this application for approval have been met. For the purposes of the better off overall test, I have had regard to each of the matters in s 193A(2)-(7).
I observe that the following clauses are likely to be inconsistent with the National Employment Standards (NES):
Compassionate Leave: Clause 25 of the Agreement provides for compassionate leave but is silent regarding compassionate leave for stillbirths or miscarriages. This is inconsistent with ss.104(1)(b) and (c) of the Act.
Termination: Clause 23.3 of the Agreement provides that if the employee does not provide the required notice of termination, the employer may withhold monies that are due to the employee upon termination. This is a restriction on an employee’s entitlement to payment of NES entitlements upon termination.
However, noting clause 7.2 of the Agreement, I am satisfied that the more beneficial entitlements of the NES in the Act will prevail where there is an inconsistency between the Agreement and the NES.
The Agreement does not contain a delegates’ rights term, as required by s.205A(1) of the Act. I note that clause 5.1 of the Agreement wholly incorporates the Manufacturing and Associated Industries and Occupations Award 2020. As such, the workplace delegates’ rights term in Clause 40A of the Manufacturing and Associated Industries and Occupations Award 2020 is taken to be a term of the Agreement.
The Agreement is approved, and in accordance with s.54 of the Act, will operate from 1 November 2024. The nominal expiry date of the Agreement is 1 November 2027.
COMMISSIONER
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Annexure A
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