Ardex Australia Pty Ltd

[2013] FWCA 1200

[2013] FWCA 1200

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement

Ardex Australia Pty Ltd
(AG2013/4623)

ARDEX AUSTRALIA NSW COLLECTIVE AGREEMENT 2012

Manufacturing and associated industries
COMMISSIONER BULL	SYDNEY, 21 FEBRUARY 2013

Application for approval of the Ardex Australia NSW Collective Agreement 2012.

[1] An application has been made for approval of an enterprise agreement known as the Ardex Australia NSW Collective Agreement 2012 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single-enterprise agreement.

Extension of time

[2] The application was lodged at Sydney on 22 January 2013. Section 185(3)(a) of the Actprovides that an application for approval must be made within 14 days after the Agreement is made. I note that the application was lodged out of time. Section 185(3)(b) of the Actconfers a discretion on FWA to extend time. In light of the reasons provided by the Applicant, I have decided to exercise the discretion provided by subsection 185(3)(b) of the Act and extend time accordingly.

[3] The Commission wrote to the Applicant on 14 February 2013 with respect to clause 22 - Redundancy, and in particular subclause 22(b)(iv) of the Agreement. The Applicant has advised the Commission that the reference to ‘the Workplace Relations Act 1996 (Cth.)’ is a typographical error and should state ‘the Fair Work Act 2009 (Cth)’.

Undertakings

[4] An undertaking with respect to clause 10 - Annual Leave, the provision of five weeks annual leave for shift workers in accordance with the National Employment Standards, has been provided by the Applicant.

[5] This undertaking is taken to be a term of the Agreement. A copy of the undertaking is attached at Annexure A.

[6] I have sought the views of the bargaining representatives in respect of the undertaking, pursuant to s.190(4) of the Act. The bargaining representatives have not advised of any concerns with the undertaking provided.

Model Flexibility Term

[7] The Agreement does not contain a flexibility clause. The Applicant has requested that the Model Flexibility Term be adopted as a term of the Agreement. Pursuant to s.202(4) of the Act, the Model Flexibility Term, as found at Schedule 2.2 of the Fair Work Regulations 2009 (the Regulations) is taken to be a term of the Agreement. A copy of the model term is attached at Annexure B.

Model Consultation Term

[8] The Agreement does not contain a consultation clause. The Applicant has requested that the Model Consultation Term be adopted as a term of the Agreement. Pursuant to s.205(2) of the Act, the Model Consultation Term, as found at Schedule 2.3 of the Regulations is taken to be a term of the Agreement. A copy of the model term is attached at Annexure C.

[9] The Agreement covers employees engaged in the employer’s New South Wales production facility. I am satisfied that pursuant to s.186(3A) of the Act, this group is fairly chosen as being operationally or organisationally distinct.

[10] I am satisfied that each of the requirements of ss.187 and 188 of the Act as are relevant to the application for approval have been met.

[11] The Agreement is approved. In accordance with s.54(1) of the Act, the Agreement will operate from 28 February 2013. The nominal expiry date of the Agreement is 31 December 2015.

COMMISSIONER

Annexure A

Annexure B

Annexure C

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