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

Printed by authority of the Commonwealth Government Printer

In the Fair Work Commission, Ardex Australia Pty Ltd sought approval for the Ardex Australia SA Collective Agreement 2019. The application was brought before the Commission to ensure the agreement complied with the Fair Work Act 2009 and provided for fair and reasonable terms and conditions for the employees involved. The legal issues the court had to address involved whether the agreement met the necessary criteria for approval as stipulated in the Act. This included ensuring the agreement was not detrimental to the employees, was made in good faith, and complied with the relevant provisions of the Act.

The Commission assessed the agreement against the statutory requirements, considering the fairness of the terms and the process by which the agreement was reached. The Commission examined whether the agreement was made in a manner that was free from any improper conduct or coercion and whether it provided for fair and reasonable terms and conditions of employment. The Commission also considered whether the agreement met the standards set by the safety net of minimum wages and conditions, and whether it allowed for genuine collective bargaining.

After thorough examination, the Commission found that the agreement complied with the statutory requirements for approval. The Commission was satisfied that the agreement was made in good faith, provided for fair and reasonable terms and conditions, and did not have any detrimental effects on the employees. The Commission also found that the agreement met the standards of the safety net and allowed for genuine collective bargaining. Consequently, the Commission approved the Ardex Australia SA Collective Agreement 2019.

Ardex Australia Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established