Blowflex Mouldings Pty Ltd

[2024] FWCA 3979

[2024] FWCA 3979

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Blowflex Mouldings Pty Ltd

(AG2024/4142)

BEGA CHELSEA BLOW MOULDING ENTERPRISE AGREEMENT 2024

Manufacturing and associated industries
COMMISSIONER REDFORD	MELBOURNE, 18 NOVEMBER 2024

Application for approval of the Bega Chelsea Blow Moulding Enterprise Agreement 2024

1. An application has been made for approval of an enterprise agreement known as the Bega Chelsea Blow Moulding Enterprise Agreement 2024 (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.

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. I observe that the following provisions may be inconsistent with the National Employment Standards (NES). However, noting clause 6 of the Agreement (NES precedence clause), I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES:

• Clause 28.7 of the Agreement provides for the withholding of monies in circumstances where an employee has given insufficient notice of resignation. This clause may permit the employer to deduct monies from employee’s entitlements under the NES (such as notice of termination, accrued but unused annual leave or long service leave on termination). Accordingly, this clause may be inconsistent with Chapter 2 Part 2.2 Division 2 of the Act however, when read in conjunction with the NES precedence clause will have no effect to the extent of any inconsistency.

• Clause 48 of the Agreement deal with abandonment of employment. If this clause has the effect of excluding an employee’s right to minimum notice of termination under the NES, to the extent that notice under the NES would apply, it may be inconsistence. However, when read in conjunction with the NES precedence clause will have no effect to the extent of any inconsistency.  

1. Section 202 of the Act provides that if an enterprise agreement does not include a flexibility term, the model flexibility term prescribed by Schedule 2.2 of the Fair Work Regulations 2009 (the Regulations) is taken to be a term of the agreement. Section 203 of the Act provides that a flexibility term must meet the requirements it sets out, including, relevantly, that the flexibility term must be able to be terminated by either the employee, or the employer, giving written notice of not more than 28 days, or by the employee and the employer at any time if they agree, in writing, to the termination. As clause 10 of the agreement provides that the employer or the employee may terminate an IFA by giving 7 days notice to the other party, not 28 days as is required by s 203(6) of the Act the flexibility term provided for at clause 10 of the agreement does not meet the requirements set out in that section of the Act, and the model flexibility term prescribed by 2.2 of the Regulations is 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 (UWU) 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 UWU.

1. The Agreement is approved and, in accordance with s.54 of the Act, will operate from 25 November 2024.

COMMISSIONER

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Annexure A