Wigley Engineering Pty Ltd
[2023] FWCA 2419
•7 AUGUST 2023
| [2023] FWCA 2419 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.185—Enterprise agreement
Wigley Engineering Pty Ltd
(AG2023/2450)
WIGLEY ENGINEERING PTY LTD ENTERPRISE AGREEMENT 2023
| Manufacturing and associated industries | |
| COMMISSIONER LIM | PERTH, 7 AUGUST 2023 |
Application for approval of the Wigley Engineering Pty Ltd Enterprise Agreement 2023
Wigley Engineering Pty Ltd has made an application for the approval of an enterprise agreement known as the Wigley Engineering Pty Ltd Enterprise Agreement 2023 (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) (the Amending Act) made a number of changes to enterprise agreement approval processes in Part 2-4 of the Act, which commenced operation on 6 June 2023.
Under transitional arrangements, amendments made by Part 14 of Schedule 1 to the
Amending Act in relation to genuine agreement requirements for agreement approval applications apply where the notification time for the agreement was on or after 6 June 2023. The genuine agreement provisions in Part 2-4 of the Act, as it was before 6 June 2023, continue to apply in relation to agreement approval applications where the notification time for the agreement was before 6 June 2023. The notification time for the Agreement was 17 May 2023.
The matter was allocated to my Chambers on 26 July 2023. I convened a mention on 31 July 2023 with the Applicant and their representative, Australian Industry Group (AIG).
At the mention, I canvassed two concerns with the application and Agreement. The first related to the better off overall test – the Agreement as lodged covers employees who fall within classifications in the Road, Transport and Distribution Award (RTD Award). However, clause 12 in the Agreement does not include minimum rates for employees under the RTD Award.
The second issue concerned genuine agreement. The Agreement as lodged covers employees who fall within classifications in the following four awards: Manufacturing and Associated Industries and Occupations Award 2020; Clerks – Private Sector Award 2020; Commercial Sales Award 2020; and the RTD Award. During the mention, the Applicant disclosed that at the time employees voted on the Agreement, there were no employees engaged under classifications in the RTD Award.
I gave the Applicant the opportunity to provide undertakings and submissions to address the two concerns raised. The Applicant has provided a submission that the Agreement should not cover employees that would fall within the coverage of the RTD Award and has provided an undertaking removing clause 6.1.4 of the Agreement to give effect to this. The Applicant also provided evidence that at the time of the vote, there were employees who fell under the coverage of the other three incorporated awards.
A copy of this undertaking is attached in Annexure A. I am satisfied that the undertaking addresses the concerns raised, will not cause financial detriment to any employee covered by the Agreement and will not result in substantial changes to the Agreement.
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.
The Agreement was approved on 7 August 2023 and, in accordance with s 54, will operate from 14 August 2023. The nominal expiry date of the Agreement is 14 August 2025.
COMMISSIONER
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ANNEXURE A
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