Borg Manufacturing Pty Ltd

[2022] FWCA 3008

[2022] FWCA 3008

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Borg Manufacturing Pty Ltd

(AG2022/3489)

Borg Manufacturing Pty Ltd Mount Gambier Agreement 2022

Manufacturing and associated industries
COMMISSIONER PLATT	ADELAIDE, 31 AUGUST 2022

Application for approval of the Borg Manufacturing Pty Ltd Mount Gambier Agreement 2022

1. An application has been made for approval of an enterprise agreement known as the Borg Manufacturing Pty Ltd Mount Gambier Agreement 2022 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act) by Borg Manufacturing Pty Ltd (the Applicant). The agreement is a single enterprise agreement.

1. The matter was allocated to my Chambers on 26 August 2022.

1. On 30 August 2022, I conducted a telephone conference with the parties to seek clarification about aspects of the Agreement and invited the Applicant to address these matters including through the provision of an undertaking.

1. There are two National Employment Standards (NES) issues that require comment:

·   The Agreement provides for leave in hours instead of weeks at clause 50.1(a) for day shift and non-continuous shift workers, and clause 90.5(c) for shift workers. This appears to be inconsistent with s.87(1) of the Act.

·   Clause 52.9 of the Agreement provides for compassionate leave but does not extend the entitlement to when the employee, their spouse, or de facto partner has a miscarriage or gives birth to a stillborn child. This is inconsistent with s.104(1)(c) of the Act.

1. Clause 7.6 of the Agreement acts as an effective NES precedence clause, in that it states that in the event that the conditions set out in the Agreement, including the incorporated Award, are less favourable than those in the NES, in any particular respect, the conditions in the NES will apply to the exclusion of the Agreement in the particular respect in which they are more favourable. As a result of the NES precedence clause, the above clauses will not apply to the extent that they are inconsistent with the NES.

1. The Applicant has submitted an undertaking in the required form dated 30 August 2022. The undertaking deals with the following topics:

·  Despite the wording of clause 84.5, ordinary hours of work will not exceed an average of 38 hours per week over the 8-week roster cycle.

·  When on annual leave, employees on a 12-hour continuous shift roster will be paid at the same rate that they would have received if they had worked, including overtime and loading components over the 8-week cycle

·  Where an employee works ordinary hours on a public holiday they will be paid at a minimum rate of double time and a half.

1. 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. 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 (CFMMEU), Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) and “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU), 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) of the Act I note that the Agreement covers these organisations.

1. I am satisfied that each of the requirements of ss.186, 187, 188 and 190 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 1 July 2025.

COMMISSIONER

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