Construction, Forestry and Maritime Employees Union

[2024] FWCA 4063

[2024] FWCA 4063

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Construction, Forestry and Maritime Employees Union

(AG2024/4243)

Manufacturing and associated industries
COMMISSIONER REDFORD	MELBOURNE, 25 NOVEMBER 2024

Application for approval of the Bradmill Outdoor Fabrics Pty Ltd and CFMEU – Manufacturing Division Enterprise Agreement 2024

1. An application has been made for approval of an enterprise agreement known as the Bradmill Outdoor Fabrics Pty Ltd and CFMEU – Manufacturing Division 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 Construction, Forestry and Maritime Employees Union. The Agreement is a single enterprise agreement.

Procedural matters

Late lodgement

1. Section 185(3)(a) of the Act provides that an application for approval of an agreement must be made no later than 14 days after the agreement being made. The Agreement was made on 14 October 2024 and lodged on 29 October 2024, 15 days after the Agreement was made and therefore 1 day late. I have considered the explanation provided for the late lodgement and am satisfied in all the circumstances that it is fair to extend the period to the date on which the application was lodged.

Notice of Employee Representational Rights

1. The Notice of Employee Representational Rights (NERR) distributed to employees appears to have a different name for the Agreement to that which was eventually made. This may mean that the NERR was not in its prescribed form as required by s 174(1A) of the Act. However, I am satisfied that this is a minor or technical error and employees covered by the Agreement were not likely to have been disadvantaged by it. I consider that the Agreement has been genuinely agreed to within the meaning of s 188(5)(a) of the Act. 

Provision of information to employees before vote

1. It appears employees were provided information about the vote on the agreement on 14 October 2024, six days before the vote. I queried why employees were not provided with this information at least seven full calendar days before the vote, and how they were provided with this information. Based on the responses provided, and having regard to item 16 of the Statement of Principles on Genuine Agreement, I am satisfied that the requisite information was provided to employees within a reasonable time before the vote, taking into account the nature of the work-site, the number of employees, the agreement of the Union and its participation of the Union in the process.

Undertakings

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.

BOOT issues

1. One of the undertakings provided is that the pay rates in the agreement with respect to classification skill levels 1 and 2 are corrected so as to be above Award levels for those classifications. Taking into account that clause 7.1 of the agreement provides that the Textile, Clothing, Footwear and Associated Industries Award 2020 are incorporated into the agreement, and other above-award provisions in the agreement, the correction of the pay rates I have referred to allayed my initial concern as to whether employees covered by the agreement would be better off than if they were covered by the relevant award.

Interaction with the National Employment Standards

1. The Employer has provided an undertaking in relation to the interaction between the Agreement and the NES – the NES precedence clause. This undertaking, which is taken to be a term of the Agreement pursuant to s 191(1) of the Act, provides that where there is an inconsistency between the Agreement and the NES, and the NES provides a greater benefit, the NES provision will apply to the extent of any inconsistency. 

1. On this basis, I am satisfied that the apparent inconsistencies with the NES outlined below do not prevent the approval of this agreement:   

a.Clause 20.3 of the Agreement appears to provide that that the employer and a majority of affected employees may agree to substitute a public holiday for another day. This appears to be inconsistent with s 115(3) of the Act, which provides that the substitution of a public holiday with another day may only occur by agreement between the employer and an employee, rather than a majority of employees however, when read in conjunction with the NES precedence undertaking will have no effect to the extent of any inconsistency.

b.Clause 33.2 of the Agreement provides for the withholding of monies in circumstances where an employee has given insufficient notice of resignation.  This clause appears to 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 undertaking will have no effect to the extent of any inconsistency.

Consideration

1. On the basis of the matters 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 CFMEU – Manufacturing Division, 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. The Agreement is approved and, in accordance with s.54(1) of the Act, will operate from 2 December 2024.

COMMISSIONER

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Annexure A