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[8]
austlii:cth/FWCA/2025/1492
General information, not legal advice.
FWCA
2025-05-05
Original judgment source is linked above.
s.185 - Application for approval of a single-enterprise agreement
Furnace Solutions Pty Ltd Trading AS Furnace Solutions
FURNACE SOLUTIONS PTY LTD ENTERPRISE AGREEMENT 2025
Application for approval of the Furnace Solutions Pty Ltd Enterprise Agreement 2025
[1] Furnace Solutions Pty Ltd Trading AS Furnace Solutions (the Applicant) has made an application for the approval of an enterprise agreement known as the name of agreement (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.
[2] The Applicant 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.
[3] In compliance with s 190(4) of the Act, the bargaining representatives' views regarding the undertakings proffered were sought. They were provided with the opportunity to raise and address any objections they had to the undertakings proffered by the Applicant. No objection was raised.
[4] 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.
[5] I note that the following clauses in the Agreement appear to be inconsistent with the National Employment Standards (the NES):
(a) Clause 14.3 states that annual leave does not accrue during any period of unpaid leave or unauthorised absence. This may be more restrictive than the exceptions provided in s 22(2)(b) of the Act which count as service such as:
a period of absence under Division 8 of Part 2-2 (which deals with community service leave); or
a period of stand down under Part 3-5, under an enterprise agreement that applies to the employee; or
under the employee's contract of employment; or
a period of leave or absence of a kind prescribed by the Fair Work Regulations 2009.
(b) Clause 15.3 states that paid personal/carer's leave does not accrue during any period of unpaid leave, unauthorised absences or workers' compensation. This may be more restrictive than the exceptions provided in s 22(2)(b) of the Act which count as service.
(c) Clause 15.10 and 16.5 indicate that an employee who is unable to attend work must notify the employer as soon as practicable of his/her inability to attend work, which generally should occur before the commencement of work. This may be inconsistent with s 107(2)(a) of the Act which provides that an employee must notify the employer as soon as reasonably practicable (which does not require special circumstances).
(d) Clause 16 provides for compassionate leave; however, it appears to omit the entitlement to leave where an employee, their partner or spouse has a miscarriage or gives birth to a stillborn child. This may be more restrictive than s 104(1)(b)(c) of the Act.
(e) Clause 17.5 provides that by agreement between the employer and the majority of employees, other days may be substituted for any of the days listed in clause 17.1. This appears to be inconsistent with of the Act which provides that the substitution of a public holiday with another day may only occur by agreement between the employer and an individual employee, rather than a majority of employees.
[6] However, I am satisfied that under clause 4.3 of the Agreement, the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.
[7] The Agreement was approved on 5 May 2025 and, in accordance with s 54, will operate from 12 May 2025. The nominal expiry date of the Agreement is 5 May 2029.
Printed by authority of the Commonwealth Government Printer
(f) Clause 23.11 provides that if an employee has three consecutive days of unauthorised absence from work without explanation, the employer will make reasonable efforts to contact the employee. If the employer is unable to make contact with the employee, the employer may consider that the employee has abandoned their employment. In such circumstance, the employee may be subject to disciplinary action, up to and including termination of employment. This clause does not specifically provide that employees deemed to have abandoned their employment in accordance with this clause will be afforded their minimum notice of termination entitlement as per s 117(3) of the Act. Section 123 of the Act does not preclude an employee who has abandoned their employment from the entitlement to notice of termination provided by s 117 of the Act.