Zircodata Services Pty Ltd

[2023] FWCA 632

[2023] FWCA 632

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Zircodata Services Pty Ltd

(AG2023/281)

ZircoDATA Services SA Enterprise Agreement 2021 - 2024

Storage services
COMMISSIONER PLATT	ADELAIDE, 27 FEBRUARY 2023

Application for approval of the ZircoDATA Services SA Enterprise Agreement 2021 - 2024

1. An application has been made for approval of an enterprise agreement known as the ZircoDATA Services SA Enterprise Agreement 2021 - 2024 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act) by ZircoDATA Services Pty Ltd (the Applicant). The agreement is a single enterprise agreement.

1. The matter was allocated to my Chambers on 20 February 2023.

1. On 23 February 2023, I conducted a telephone conference with the parties to seek clarification about aspects of the Agreement and invited the Applicant to address these matters including through the provision of an undertaking.

Late Application

1. The Agreement was not lodged within 14 days after it was made. The Applicant advised it incorrectly thought that the timeframe was expressed in working days. Pursuant to s.185(3)(b) of the Act I consider it fair to extend the time for making this application to 9 February 2023.

Undertaking

1. The Applicant has submitted an undertaking in the required form dated 23 February 2023. The undertaking deals with the following topics:

·   Disputes in relation to the operation of the National Employment Standards (NES) may be processed under Clause 25.

·   Despite Clause 19.1, the notification time for personal/carers leave will be in accordance with the NES.

·   Despite Clause 21, employees will be entitled to two days paid compassionate leave should an employee or their spouse or de-facto partner have a miscarriage or give birth to a still born child.

·   Despite Clause 16.1, casual employees who work overtime will be entitled to the applicable loading and their 25% casual loading.

·   Despite Clause 16.4, part time employees who work in excess of their agreed hours will be paid overtime rates.

·   Despite Clause 16, work performed outside the spread of hours will be paid as overtime.

·   Despite Clause 13.2, employees who perform shift work for less than 5 consecutive shifts will be entitled to the penalties detailed.

·   Whilst I note the undertaking given with respect to abandonment of employment, it does not address the inconsistency between Clause 32 and the NES. As a result of the NES precedence clause contained in Clause 36 of the Agreement, employees who abandon their employment will be entitled to notice in accordance with the NES.

1. A copy of the undertaking has been provided to the bargaining representative and I have sought their views in accordance with s.190(4) of the Act. The bargaining representative that responded, supported the undertaking.

1. The undertaking appears to meet the requirements of s.190(3) of the Act and I have accepted it. As a result, the undertakings are taken to be a term of the Agreement.

Approval

1. 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.

1. The Agreement is approved and, in accordance with s.54 of the Act, will operate from 7 days after the date of approval of the Agreement. The nominal expiry date is 30 April 2024.

COMMISSIONER

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