Wesfarmers LPG Pty Ltd
[2023] FWCA 2834
•5 SEPTEMBER 2023
| [2023] FWCA 2834 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.185—Enterprise agreement
Wesfarmers LPG Pty Ltd
(AG2023/2782)
WESFARMERS LPG PTY LTD PROCESS OPERATORS AGREEMENT 2023
| Oil and gas industry | |
| DEPUTY PRESIDENT MILLHOUSE | MELBOURNE, 5 SEPTEMBER 2023 |
Application for approval of the Wesfarmers LPG Pty Ltd Process Operators Agreement 2023
An application has been made for approval of an enterprise agreement known as the Wesfarmers LPG Pty Ltd Process Operators Agreement 2023 (Agreement). The application was made pursuant to s 185 of the Fair Work Act 2009 (Cth) (Act). It has been made by Wesfarmers LPG Pty Ltd (Employer). The Agreement is a single-enterprise agreement.
The notification time for the Agreement precedes 6 June 2023. Accordingly, the legislative changes to the Act in relation to the genuine agreement provisions which commenced on 6 June 2023 do not apply to this approval application.[1] However, the Agreement was made after 6 June 2023. Accordingly, the amendments to the better off overall test have commenced and so apply to this approval application.[2]
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.
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. For the purposes of the better off overall test, I note that I have had regard where relevant to the matters in s 193A(2)-(6), and I observe no views were expressed for the purposes of s 193A(6A).
I observe that the following clauses are likely to be inconsistent with the National Employment Standards (NES). However, noting clause 2.3.4 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 6.2.11 provides a definition of ‘household’ which appears to be more restrictive than the NES, as this term is not defined in ss 95-107 of the Act.
· Clause 7.4 provides that an employee must notify the employer not later than one hour prior to the time they are required to commence work. 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).
· Clause 7.4 sets out circumstances where an employee is deemed to have abandoned their employment but does not specify that an employee is entitled to payment of notice of termination in accordance with ss 117–123 of the Act.[3]
The Australian Workers’ Union, being a bargaining representative for the Agreement, has given notice under s 183 of the Act that it wants the Agreement to cover it. In accordance with s 201(2) I note that the Agreement covers the organisation.
The Agreement is approved and, in accordance with s 54 of the Act, will operate from 12 September 2023. The nominal expiry date of the Agreement is 1 October 2026.
DEPUTY PRESIDENT
Annexure A
[1] The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Amending Act) commenced operation with respect to the genuine agreement provisions and the better off overall test provisions of the Act on 6 June 2023. However, in relation to the genuine agreement provisions, Division 11 of Part 26 of the Amending Act provides that Part 2-4 of the Act continues to apply, as if the amendments had not been made, in relation to any proposed enterprise agreement for which the notification time occurs before 6 June 2023.
[2] Division 12 of Part 26 of the Amending Act provides that the amendments to the better off overall test apply in relation to enterprise agreements made on and after 6 June 2023
[3] Bienias v Iplex Pipelines Australia Pty Limited[2017] FWCFB 38 at [58]
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