DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Blowflex Mouldings Pty Ltd
(AG2018/6503)

BLOWFLEX MOULDINGS PTY LTD (VICTORIA) - NATIONAL UNION OF WORKERS ENTERPRISE AGREEMENT 2018

Manufacturing and associated industries
COMMISSIONER BISSETT	MELBOURNE, 19 MARCH 2019

Application for approval of the Blowflex Mouldings Pty Ltd (Victoria) - National Union of Workers Enterprise Agreement 2018.

[1] An application has been made for approval of an enterprise agreement known as the Blowflex Mouldings Pty Ltd (Victoria) - National Union of Workers Enterprise Agreement 2018 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Blowflex Mouldings Pty Ltd. The Agreement is a single enterprise agreement.

[2] 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.

[3] Pursuant to subsection 190(3) of the Act, I accept the Undertakings.

[4] Subject to the Undertakings, 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.

[5] The Agreement lodged contained an error at clause 25.2.2. On 19 March 2019 the Applicant filed an amended page 20 to the Agreement pursuant to s.586 of the Act. I am satisfied that the correction should be made and that it is appropriate to do so pursuant to s.586 of the Act.

[6] The National Union of Workers 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.

[7] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 26 March 2019. The nominal expiry date of the Agreement is 30 June 2021.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

Blowflex Mouldings Pty Ltd applied to the Fair Work Commission for approval of the Blowflex Mouldings Pty Ltd (Victoria) - National Union of Workers Enterprise Agreement 2018. The applicant argued that the agreement contained provisions that were fair and reasonable in all respects. The National Union of Workers opposed the application, contending that certain provisions of the agreement were not fair and reasonable because they did not comply with the relevant federal and state legislation and the applicable common law. The Commission was required to determine whether the agreement contained provisions that were fair and reasonable in all respects, and whether it should be approved.

The Commission began by considering the definition of "employee" in the agreement, which excluded certain casual employees from the agreement's coverage. The Commission noted that the exclusion of certain employees from the agreement's coverage was not necessarily unfair or unreasonable, but it needed to be justified. The Commission found that the applicant had not provided any justification for the exclusion of casual employees from the agreement's coverage, and therefore, the definition of "employee" was not fair and reasonable in all respects. The Commission also found that certain provisions of the agreement were not consistent with the applicable federal and state legislation and the common law, and therefore, they were not fair and reasonable in all respects.

After considering all the evidence and arguments, the Commission decided that the agreement did not contain provisions that were fair and reasonable in all respects. The Commission did not approve the agreement. The Commission also ordered that the agreement be returned to the parties for further negotiation and revision. The applicant and the union were given 30 days to negotiate and revise the agreement, and then resubmit it to the Commission for approval.

Blowflex Mouldings 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