Asaleo Personal Care Pty Ltd

[2023] FWCA 2993

[2023] FWCA 2993

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185 - Application for approval of a single-enterprise agreement

Asaleo Personal Care Pty Ltd

(AG2023/3003)

ASALEO PERSONAL CARE PTY LTD SPRINGVALE SITE (PRODUCTION AND WAREHOUSE) AGREEMENT 2023

Manufacturing and associated industries
COMMISSIONER CONNOLLY	MELBOURNE, 15 SEPTEMBER 2023

Application for approval of the Asaleo Personal Care Pty Ltd Springvale Site (Production and Warehouse) Agreement 2023

1. An application has been made for approval of an enterprise agreement known as the Asaleo Personal Care Pty Ltd Springvale Site (Production and Warehouse) Agreement 2023 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act) by Asaleo Personal Care Pty Ltd (the Applicant). The Agreement is a single enterprise agreement.

1. The matter was allocated to my Chambers on 5 September 2023.

1. The notification time for the Agreement under s.173(2) was 26 September 2022 and the Agreement was made on 17 August 2023.  Accordingly, the genuine agreement requirements the Agreement is to be assessed under are those applying before 6 June 2023 and the better off overall test (BOOT) is that applying on and from 6 June 2023. [1] 

1. A concern was raised in clause 26.13(d) of the Agreement and whether this clause was inconsistent with s.324 of the Act. This clause provides the following:

“Annual Leave Loading

26.13    The following leave loadings will apply:

(a)unless otherwise stated in this clause 26.13 annual leave loading will be paid at the ordinary weekly rate plus 38.75%;

(b)annual leave paid upon termination for reasons of redundancy, resignation or termination based upon inability to perform the inherent requirements of the role due to injury or ill health, will be paid at the ordinary weekly rate plus 38.75%;

(c)annual leave upon termination for any reason (other than as set out in 26.13(b)) will be paid at ordinary weekly rate plus 20%;

(d)on compassionate grounds, the Site Manager may approve annual leave in

advance of accrual. If leave is taken in advance of accrual, that annual leave will be paid at the ordinary weekly rate plus 20%. In circumstances where an employee terminates employment with the Company prior to the advanced leave being accrued, the Company will deduct an amount equivalent to the outstanding leave owed from the employee’s final pay.”

1. In my view, this clause may not permit deductions within the meaning of s.324 of the Act, and pursuant to s.326 is likely to have no effect to the extent that it is not a permitted deduction. However, notwithstanding my views on this, it is not a matter to which I am to have regard in terms of whether or not the Agreement should be approved and does not represent a barrier to the approval of the Agreement.

1. On 7 September 2023, the Employer was invited to address aspects of the Agreement including through the provision of an undertaking.

1. The Applicant has provided written undertakings, dated 12 September 2023, and a copy is attached in Annexure A. 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 did not express any view on the undertaking.

1. I am satisfied that the undertaking will not cause financial detriment to any employee covered by the Agreement and that the undertaking will not result in substantial changes to the Agreement, thus appearing to meet the requirements of s.190(3). The undertaking is taken to be a term of the Agreement.

1. 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.

1. The Construction, Forestry, Maritime, Mining and Energy 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.

1. I am satisfied that each of the requirements of ss.186, 187, 188, 190, 193 and 193A of the Act as are relevant to this application for approval have been met.

1. 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 23 November 2025.

COMMISSIONER

Annexure A

[1] The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) made a number of changes to enterprise agreement approval processes in Part 2-4 of the Fair Work Act. Those changes broadly commenced operation on 6 June 2023, subject to various transitional arrangements that included those to effect described above.

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