Corex Plastics Australia Pty Ltd

[2024] FWCA 2744

[2024] FWCA 2744

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Corex Plastics Australia Pty Ltd

(AG2024/2377)

COREX PLASTICS AUSTRALIA PTY LTD (EXTRUSION DIVISION) & UNITED WORKERS UNION ENTERPRISE AGREEMENT 2024

Manufacturing and associated industries
DEPUTY PRESIDENT BELL	MELBOURNE, 26 JULY 2024

Application for approval of the Corex Plastics Australia Pty Ltd (Extrusion Division) & United Workers Union Enterprise Agreement 2024 – s.218A variation to correct or amend obvious error.

Approval

1. An application has been made for approval of an enterprise agreement known as the Corex Plastics Australia Pty Ltd (Extrusion Division) & United Workers Union Enterprise Agreement 2024 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act) by the employer Corex Plastics Australia Pty Ltd. The Agreement is a single enterprise agreement.

1. The notification time for the Agreement under s.173(2) was 28 February 2024 and the Agreement was made on 21 June 2024. Accordingly, both the genuine agreement and the better off overall test requirements are those applying on and from 6 June 2023.[1]

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. Pursuant to s.201(3), the undertakings are taken to be a term of the Agreement.

1. Correspondence was sent by my chambers to the employer raising potential concerns regarding patterns of work and their potential impact on the better off overall test (BOOT). One concern was in relation to non-successive afternoon / night shifts when compared to Award entitlements. The employer providing submissions, which I accept, that its night shift is permanent and operates in accordance with the relevant Manufacturing and Associated Industries and Occupations Award 2020 (Award) provisions. Another concern was regarding part-time and casual employee day-shift workers on Sundays.  The employer submitted, and I accept, that this pattern of work is more theoretical than reasonably foreseeable. It also noted the Extrusion department has never had a part-time or casual employee. A further concern was the non-provision in the Agreement of some allowances provided for under the Award. The employer submitted, and I accept, that no excluded allowance would arise under any reasonably foreseeable pattern of work or type of employment, and that other allowances are not applicable.

1. For each of the above matters, I am satisfied for the purpose of s.193A(6), and determine under s.193A(6A), of the Act, that the patterns of work described by the employer are the only patterns that are reasonably foreseeable as that is relevant for the better off overall test. No information to the contrary was indicated to chambers.  

1. Subject to the undertakings referred to above, I am satisfied that each of the requirements of ss.186, 187, 188, 190, 193 and 193A as are relevant to this application for approval have been met. The Agreement does not cover all of the employees of the employer. However, taking into account the factors in sections 186(3) and (3A), I am satisfied that the group of employees was fairly chosen.

1. The Notice of Employee Representational Rights (NOERR) was not in the prescribed form, as the pre-reform version has been used. It also contained additional content to prescribed form, including company letterhead, date and sign off. Nevertheless, in the circumstances, I am satisfied that this constitutes a minor procedural or technical error for the purposes of s.188(5) of the Act. Further, I am satisfied that the employees covered by the agreement were not likely to have been disadvantaged by the error. As a result, I am satisfied that the Agreement has been genuinely agreed within the meaning of s.188 of the Act.

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 organisation.

1. The Agreement was approved on 26 July 2024 and, in accordance with s.54 of the Act, will operate from 2 August 2024. The nominal expiry date of the Agreement is 30 June 2026.

Variation

1. The Agreement lodged appeared to contain an error in clause 1 of the Agreement regarding the Agreement title. Clause 1 provides that the Agreement will be known as the ‘Corex Plastics Pty Ltd (Extrusion Division) & United Workers Union Enterprise Agreement 2022’. The Agreement title is otherwise referred to throughout the Agreement as “Corex Plastics Australia Pty Ltd (Extrusion Division) & United Workers Union Enterprise Agreement 2024”.

1. Correspondence was sent to the parties to clarify that the reference to ‘2022’ in title clause 1 may be a mistake, and is intended to be a reference to ‘2024’ and further, that the Agreement title is intended to include the word ‘Australia’. I advised the parties that I intended to amend the clause on my own initiative pursuant to s.218A of the Act as an ‘obvious error’. The Parties were provided an opportunity to provide submissions if they disagreed with this proposed course of action. No objection was received to me amending the Agreement pursuant to s.218A.

1. I am satisfied the reference to ‘2022’ and non-inclusion of the word ‘Australia’ in clause 1 of the Agreement is an obvious error and should be corrected. The errors will be amended as per the order below.

Order

1. I order, pursuant to s.218A of the Act, that the Agreement be varied to correct an obvious error as follows:

1. By deleting the reference to ‘Corex Plastics Pty Ltd (Extrusion Division) & United Workers Union Enterprise Agreement 2022’ in clause 1 and replacing it with ‘Corex Plastics Australia Pty Ltd (Extrusion Division) & United Workers Union Enterprise Agreement 2024’.

1. The variation will operate from 26 July 2024.

DEPUTY PRESIDENT

Annexure A

[1] The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) made a number of changes to enterprise agreement approval processes in Part 2-4 of the Fair Work Act. Those changes broadly commenced operation on 6 June 2023, subject to various transitional arrangements which are not applicable to the present application.

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