Ardex Australia Pty Ltd

[2019] FWCA 3468

[2019] FWCA 3468

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Ardex Australia Pty Ltd
(AG2019/389)

ARDEX AUSTRALIA SA COLLECTIVE AGREEMENT 2019

Manufacturing and associated industries
COMMISSIONER PLATT	ADELAIDE, 20 MAY 2019

Application for approval of the Ardex Australia SA Collective Agreement 2019.

[1] An application has been made for approval of an enterprise agreement known as the Ardex Australia SA Collective Agreement 2019 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act) by Ardex Australia Pty Ltd. The agreement is a single enterprise agreement.

[2] The matter was allocated to my Chambers on 7 May 2019.

[3] On 14 May 2019, 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 the provision of an undertaking.

[4] The Applicant distributed a Notice of Employee Representational Rights (NERR) which was not in the form required by the Act at the time of its distribution. I accept the Applicant’s submission that the old NERR was distributed by mistake. I find that the error with respect to the NERR was a minor or technical error as described by s.188(2)(a), and that employees were not disadvantaged as a result, and that the agreement was genuinely agreed.

[5] The Applicant has submitted an undertaking in the required form dated 15 May 2019. The undertaking deals with the following topics:

•  The definition of a shift worker will be for the purposes of the National Employment Standards (NES).

•  The Applicant has inserted a NES precedence clause.

•  A typographical error in clause 3 of the Agreement has been rectified.

•  The Applicant has inserted shift work definitions and shift allowances.

•  The casual loading has been increased to 25%.

•  Annual leave loading will be paid out upon termination.

•  Proof of entitlement to personal leave will be in accordance with the NES (and include a medical certificate or a statutory declaration).

•  Provisions concerning the working of part-time work have been inserted.

[6] No bargaining representatives were appointed.

[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] 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.

[10] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 7 days from the date of approval of the Agreement. The nominal expiry date is 31 December 2022.

COMMISSIONER

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