Asian Pacific Colorants Pty Ltd T/A AP Colorants

[2022] FWCA 3229

[2022] FWCA 3229

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Asian Pacific Colorants Pty Ltd T/A AP Colorants

(AG2022/3460)

Asian Pacific Colorants Pty Ltd - Thomastown Site - Enterprise Agreement 2021

Manufacturing and associated industries
COMMISSIONER LEE	MELBOURNE, 15 SEPTEMBER 2022

Application for approval of the Asian Pacific Colorants Pty Ltd - Thomastown Site - Enterprise Agreement 2021

1. An application has been made for approval of an enterprise agreement known as the Asian Pacific Colorants Pty Ltd - Thomastown Site - Enterprise Agreement 2021 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Asian Pacific Colorants Pty Ltd T/A AP Colorants. The Agreement is a single enterprise agreement.

1. 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 that the undertakings will not result in substantial changes to the Agreement. The undertakings are taken to be a term of the agreement.

1. 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.

1. 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.

1. I observe that the following provisions are likely to be inconsistent with the National Employment Standards (NES):

·   Clause 17.3 – Abandonment of Employment.

·   Clause 20.8 – Employees Exempted.

·   Clause 21.1.6 and 21.5 – Termination of Employment.

·   Clause 35.8 – Cashing out of Annual Leave.

·   Clause 36.1 – Personal Leave.

·   Clause 41.3.1 and 41.3.2 – Public Holidays.

However, noting clause 9 of the Agreement, I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

1. The Agreement is approved and, in accordance with s.54 of the Act, will operate from 22 September 2022. The nominal expiry date of the Agreement is 30 November 2024.

COMMISSIONER

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Annexure A