Asian Pacific Colorants Pty Ltd T/A APColorants

[2022] FWCA 311

[2022] FWCA 311

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Asian Pacific Colorants Pty Ltd T/A APColorants

(AG2021/9276)

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

Manufacturing and associated industries
COMMISSIONER O'NEILL	MELBOURNE, 4 FEBRUARY 2022

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

1. Asian Pacific Colorants Pty Ltd has applied for approval of an enterprise agreement known as the Asian Pacific Colorants Pty Ltd - Lara Site - Enterprise Agreement 2021 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act) and is a single enterprise agreement.

1. The agreement title in the Notice of Representational Rights (NERR) distributed to employees is slightly different to the agreement title in clause 1 of the Agreement. However, I am satisfied that the Agreement would have been genuinely agreed to but for the minor procedural departure from the NERR requirements under s.174 and that the employees covered by the Agreement were not likely to have been disadvantaged by this error. Accordingly, I exercise the discretion conferred by s.188(2) of the Act.

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 “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) and the United Workers’ Union being bargaining representatives for the Agreement, have given notice under s.183 of the Act that they want the Agreement to cover them. In accordance with s.201(2) I note that the Agreement covers the organisations.

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

·           Clause 36.5 – Absences;

·           Clause 45 – Annual Leave; and

·           Clause 49 – Abandonment of Employment.

However, noting clause 4 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 11 February 2022. The nominal expiry date of the Agreement is 30 June 2024.

COMMISSIONER

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Annexure A