Williams Refrigeration Australia Pty Ltd T/A Williams Refrigeration Australia Pty Ltd

[2024] FWCA 3469

[2024] FWCA 3469

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185 - Application for approval of a single-enterprise agreement

Williams Refrigeration Australia Pty Ltd T/A Williams Refrigeration Australia Pty Ltd

(AG2024/3540)

Manufacturing and associated industries
COMMISSIONER REDFORD	MELBOURNE, 9 OCTOBER 2024

Application for approval of the Williams Refrigeration Australia Pty Ltd Enterprise Agreement 2024

1. An application has been made for approval of an enterprise agreement known as the Williams Refrigeration Australia Pty Ltd Enterprise Agreement 2024 (the Agreement). The application was made pursuant to s 185 of the Fair Work Act 2009 (Cth) (the Act). It has been made by Williams Refrigeration Australia Pty Ltd (Williams Refrigeration).

2. 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 set out in ss 193A(2) – (7). 

3. Noting clause 9 of the Agreement, I am satisfied that to the extent the Agreement is less favourable than the National Employment Standards (NES), the more beneficial entitlements of the NES in the Act will prevail where there is an inconsistency between the agreement and the NES. On this basis, I am satisfied that the any apparent inconsistencies with the NES outlined below do not prevent the approval of this agreement including:

   · Clause 20.5 of the Agreement provides for a carer’s leave entitlement. While the clause defines carer’s leave as leave taken by an employee “other than a casual”, for the avoidance of doubt, s 103 of the Fair Work Act 2009 has the effect of providing an entitlement to two days unpaid carers leave where the employee has no sick leave or carer’s leave accrued. I consider that this more favourable entitlement applies through operation of the NES precedence clause – clause 9 of the Agreement.

1. The Agreement does not contain a delegates’ rights term, as required by s. 205A(1) of the Act. Pursuant to s. 205A(2) of the Act, the workplace delegates’ rights term from the relevant Award is taken to be a term of the Agreement. A copy of the workplace delegates’ rights term can be found in Appendix A.

2. The Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (AMWU), a bargaining representative for the Agreement, supports the approval of the Agreement and has given notice under s 183 of the Act that it wants to the Agreement to cover it. In accordance with s 201(2) of the Act I note that the Agreement covers the AMWU.

3. The Agreement is approved and, in accordance with s 54 of the Act, will operate from 16 October 2024.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

<AE526272  PR779873>

ANNEXURE A

Manufacturing and Associated Industries and Occupations Award 2020 

Workplace Delegates rights term

40A. Workplace delegates’ rights 

40A.1 Clause 40A provides for the exercise of the rights of workplace delegates set out in section 350C of the Act . 

NOTE: Under section 350C(4) of the Act , the employer is taken to have afforded a workplace delegate the rights mentioned in section 350C(3) if the employer has complied with clause 40A. 

40A .2 In clause 40A: 

(a) employer means the employer of the workplace delegate; 

(b) delegate’s organisation means the employee organisation in accordance with the rules of which the workplace delegate was appointed or elected; and 

(c) eligible employees means members and persons eligible to be members of the delegate’s organisation who are employed by the employer in the enterprise. 

40A.3 Before exercising entitlements under clause 40A, a workplace delegate must give the employerwritten notice of their appointment or election as a workplace delegate. If requested, the workplace delegate must provide the employer with evidence that would satisfy a reasonable person of their appointment or election. 

40A.4 An employee who ceases to be a workplace delegate must give written notice to the employer within 14 days. 

40A.5 Right of representation 
A workplace delegate may represent the industrial interests of eligible employees who wish to be represented by the workplace delegate in matters including: 

(a) consultation about major workplace change; 

(b) consultation about changes to rosters or hours of work; 

(c) resolution of disputes; 

(d) disciplinary processes; 

(e) enterprise bargaining where the workplace delegate has been appointed as a bargaining representative under section 176 of the Act or is assisting the delegate’s organisation with enterprise bargaining; and 

(f) any process or procedure within an award, enterprise agreement or policy of the employer under which eligible employees are entitled to be represented and which concerns their industrial interests. 

40A.6 Entitlement to reasonable communication 

(a) A workplace delegate may communicate with eligible employees for the purpose of representing their industrial interests under clause 40A.5. This includes discussing membership of the delegate’s organisation and representation with eligible employees. 

(b) A workplace delegate may communicate with eligible employees during working hours or work breaks, or before or after work. 

40A.7 Entitlement to reasonable access to the workplace and workplace facilities 

(a) The employer must provide a workplace delegate with access to or use of the following workplace facilities: 

(i) a room or area to hold discussions that is fit for purpose, private and accessible by the workplace delegate and eligible employees; 

(ii) a physical or electronic noticeboard; 

(iii) electronic means of communication ordinarily used in the workplace by the employer to communicate with eligible employees and by eligible employees to communicate with each other, including access to Wi-Fi; 

(iv) a lockable filing cabinet or other secure document storage area; and 

(v) office facilities and equipment including printers, scanners and photocopiers. 

(b) The employer is not required to provide access to or use of a workplace facility under clause 40A.7(a) if: 

(i) the workplace does not have the facility; 

(ii) due to operational requirements, it is impractical to provide access to or use of the facility at the time or in the manner it is sought; or 

(iii) the employer does not have access to the facility at the enterprise and is unable to obtain access after taking reasonable steps. 

40A.8 Entitlement to reasonable access to training 
Unless the employer is a small business employer, the employer must provide a workplace delegate with access to up to 5 days of paid time during normal working hours for initial training and at least one day each subsequent year, to attend training related to representation of the industrial interests of eligible employees, subject to the following conditions: 

(a) In each year commencing 1 July, the employer is not required to provide access to paid time for training to more than one workplace delegate per 50 eligible employees. 

(b) The number of eligible employees will be determined on the day a delegate requests paid time to attend training, as the number of eligible employees who are: 

(i) full-time or part-time employees; or 

(ii) regular casual employees. 

(c) Payment for a day of paid time during normal working hours is payment of the amount the workplace delegate would have been paid for the hours the workplace delegate would have been rostered or required to work on that day if the delegate had not been absent from work to attend the training. 

(d) The workplace delegate must give the employer not less than 5 weeks’ notice (unless the employer and delegate agree to a shorter period of notice) of the dates, subject matter, the daily start and finish times of the training, and the name of the training provider. 

(e) If requested by the employer, the workplace delegate must provide the employer with an outline of the training content. 

(f) The employer must advise the workplace delegate not less than 2 weeks from the day on which the training is scheduled to commence, whether the workplace delegate’s access to paid time during normal working hours to attend the training has been approved. Such approval must not be unreasonably withheld. 

(g) The workplace delegate must, within 7 days after the day on which the training ends, provide the employer with evidence that would satisfy a reasonable person of their attendance at the training. 

40A.9 Exercise of entitlements under clause 40A 

(a) A workplace delegate’s entitlements under clause 40A are subject to the conditions that the workplace delegate must, when exercising those entitlements: 

(i) comply with their duties and obligations as an employee; 

(ii) comply with the reasonable policies and procedures of the employer, including reasonable codes of conduct and requirements in relation to occupational health and safety and acceptable use of ICT resources; 

(iii) not hinder, obstruct or prevent the normal performance of work; and 
(iv) not hinder, obstruct or prevent eligible employees exercising their rights to freedom of association. 

(b) Clause 40A does not require the employer to provide a workplace delegate with access to electronic means of communication in a way that provides individual contact details for eligible employees. 

(c) Clause 40A does not require an eligible employee to be represented by a workplace delegate without the employee’s agreement. 

NOTE: Under section 350A of the Act , the employer must not: 

(a)unreasonably fail or refuse to deal with a workplace delegate; or 

(b)knowingly or recklessly make a false or misleading representation to a workplace delegate; or 

(c)unreasonably hinder, obstruct or prevent the exercise of the rights of a workplace delegate under the Act or clause 40A. 

40A.10 Interaction with other clauses of this award 

Other clauses of this award may give additional or more favourable entitlements to workplace delegates (however described). If an entitlement of a workplace delegate under another clause of this award is more favourable to the delegate than an entitlement under clause 40A, the entitlement under the other clause applies instead of the entitlement under clause 40A.