Dyno Nobel Asia Pacific Pty Limited
[2024] FWCA 1581
•30 APRIL 2024
| [2024] FWCA 1581 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.185—Enterprise agreement
Dyno Nobel Asia Pacific Pty Limited
(AG2024/1075)
DYNO NOBEL HUNTER VALLEY ENTERPRISE AGREEMENT 2023
| Manufacturing and associated industries | |
| DEPUTY PRESIDENT GRAYSON | SYDNEY, 30 APRIL 2024 |
Application for approval of the Dyno Nobel Hunter Valley Enterprise Agreement 2023
Introduction
Dyno Nobel Asia Pacific Pty Limited (the Employer) has made an application for approval of an enterprise agreement known as the Dyno Nobel Hunter Valley Enterprise Agreement 2023 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement.
Notice of Employee Representational Rights (NERR)
The copy of the NERR provided to employees stated that the Employer was giving notice of bargaining in relation to an Agreement titled: “Dyno Nobel Hunter Valley Enterprise Agreement 2024” rather than correctly referring to the title of the Agreement which is subject of this application. The Employer provided submissions that this matter constituted a minor technical error.
I am satisfied having regard to those submissions and the decision of the Full Bench in Huntsman Chemical Company Australia Pty Limited T/A RMAX Rigid Cellular Plastics & Others,[1] that these matters constituted minor technical or procedural errors for the purposes of s.188(5) of the Act, and that the employees covered by the Agreement were not likely to have been disadvantaged by the errors.
National Employment Standards (NES) precedence term
Clause 22 of the Agreement provides that an employee is entitled to take compassionate leave where a member of an employee’s immediate family or household contracts or develops a serious illness, or sustains a serious injury, or dies. However, this clause is silent in relation to compassionate leave for stillbirth or miscarriage, and accordingly may not be consistent with s.104(1)(b) and (c) of the Act.
Clause 21.10 provides that if it is not practicable for the employee to give notice prior to taking the leave, the employee will notify the Employer of their absence on the day of the absence. This appears more restrictive than s.107 of the Act, which provides that notice may be provided at a time “after the leave has started”.
I note that in accordance with the NES precedence term in Clause 4.2 of the Agreement, these clauses will be read and interpreted in conjunction with the NES.
Section 190 Undertakings
The employer 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.
Section 186, 187, 188 and 190
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.
Section 183 Bargaining Representatives
The Transport Workers’ Union (TWU) 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 TWU.
Approval
The Agreement is approved and, in accordance with s.54 of the Act, will operate from 7 May 2024. The nominal expiry date of the Agreement is 30 April 2028.
DEPUTY PRESIDENT
ANNEXURE A
[1] [2019] FWCFB 318.
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