Adchem (Australia) Pty Ltd

[2021] FWCA 4804

[2021] FWCA 4804

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Adchem (Australia) Pty Ltd
(AG2021/6449)

ADCHEM (AUSTRALIA) PTY LTD ENTERPRISE AGREEMENT 2021

Manufacturing and associated industries
COMMISSIONER PLATT	ADELAIDE, 6 AUGUST 2021

Application for approval of the Adchem (Australia) Pty Ltd Enterprise Agreement 2021.

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

[2] The matter was allocated to my Chambers on 2 August 2021.

[3] On 4 August 2021, 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.

[4] I note that whilst the Agreement incorporates the Manufacturing and Associated Industries and Occupation Award 2020 (the Award) the Applicant did not provide employees with a copy of the Award as required by s.180(2)(a)(ii) of the Act. Given the Agreement is ‘rollover agreement’, and has substantially similar terms to the previous agreement, I am satisfied that the employees understood the terms of the Agreement and were not substantially disadvantaged by the failure of the Applicant to provide them with the Award throughout the access period. I am satisfied (taking into consideration s.188(2) of the Act and the decision in Huntsman Chemical Company Australia Pty Limited T/A RMAX Rigid Cellular Plastics & Others) that the procedural or technical error is minor and that the employees were not likely to have been disadvantaged, and accordingly, that there has been a genuine agreement.

[5] The Applicant has submitted an undertaking in the required form dated 5 August 2021. The undertaking deals with the following topics:

•  Clause 6.1.6.2 of the Agreement is removed.

•  Despite clause 5.3.3.5.5 of the Agreement, an employee will notify the employer of any personal leave or carer’s leave as soon as practicable, which could be a time after the leave has begun.

•  New clause 4.5.10.6 has been added to the Agreement, which states that if time off in lieu of overtime (TOIL) is not taken within the period of 6 months, the employer must pay the employee for the overtime, in the next pay period following those 6 months, at the overtime rate applicable to the overtime when worked.

•  The overtime rates for public holidays in Schedule 3 has been replaced with clauses 32.7 and 33.1(b) of the Award.

•  The Applicant has inserted a National Employment Standards (NES) Precedence Clause.

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

[7] 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.

[8] As the Agreement does not contain a consultation term which meets the requirements of s.205 of the Act, the model consultation term is taken to be a term of the Agreement.

[9] 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) of the Act I note that the Agreement covers this organisation.

[10] 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.

[11] 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 31 December 2024.

COMMISSIONER

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