Application by Tamara Hart

[2024] FWCA 3707

[2024] FWCA 3707

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Application by Tamara Hart

(AG2024/3876)

ITW POLYMERS AND FLUIDS AUSTRALIA AND UNITED WORKERS UNION ENTERPRISE AGREEMENT 2023

Manufacturing and associated industries
COMMISSIONER REDFORD	MELBOURNE, 30 OCTOBER 2024

Application for approval of the ITW Polymers and Fluids Australia and United Workers Union Enterprise Agreement 2023

1. An application has been made for approval of an enterprise agreement known as the ITW Polymers and Fluids Australia and United Workers Union Enterprise Agreement 2023 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Tamara Hart. The Agreement is a single enterprise agreement.

2. The Employer 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 s will not result in substantial changes to the Agreement. The undertakings are taken to be a term of the agreement.

3. Noting clause 7 of the Agreement (the NES precedence clause), 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 to the extent of any inconsistency. On this basis, I am satisfied that matters outlined below do not prevent the approval of this agreement:  

   1. Clause 30.5 of the Agreement provides compassionate leave where a member of an employee’s immediate family or household contracts or develops a serious illness or sustains a serious injury or dies however it is silent in relation to compassionate leave for stillbirth/miscarriage as is provided by s.104(1)(b) and (c) of the Act. On the basis of the NES precedence clause, the superior entitlement provided for in the NES will apply.  
   2. Clause 16.2.2 of the Agreement appears to provide that in the case of termination, if an employee does not give the required notice, the employer may withhold from monies due to the employee a maximum amount equal to the amount the employee should have received. This clause appears to permit the employer to deduct monies from employee’s entitlements under the NES (such as notice of termination, accrued but unused annual leave or long service leave on termination). Accordingly, this clause may be inconsistent with Chapter 2 Part 2.2 Division 2 of the Act however, when read in conjunction with the NES precedence clause (clause 7) it will have no effect to the extent of any inconsistency.

4. The United 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) I note that the Agreement covers the organisation.

5. On the basis of the foregoing and subject to the undertakings referred to above, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 as are relevant to this application for approval have been met.

6. The Agreement is approved. While it appears to provide for commencement on or after 1 December 2023, as I have advised the parties, it shall operate in accordance with s.54(1)(a) of the Act, from 6 November 2024.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

<AE526498  PR780556>

Annexure A