Etex Australia Pty Ltd T/A Etex Plasterboard Summary

[2024] FWCA 4534

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Etex Australia Pty Ltd T/A Etex Plasterboard

(AG2024/4461)

ETEX PLASTERBOARD [MATRAVILLE] AGREEMENT 2024

Manufacturing and associated industries
DEPUTY PRESIDENT MASSON	MELBOURNE, 18 DECEMBER 2024

Application for approval of the Etex Plasterboard [Matraville] Agreement 2024

An application has been made for approval of an enterprise agreement known as the Etex Plasterboard [Matraville] 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 Etex Australia Pty Ltd T/A Etex Plasterboard. The Agreement is a single enterprise agreement.

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.

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.

I note that several clauses are inconsistent with the National Employment Standards. Given the National Employment Standards precedence clause at clause 5(c) of the agreement, I am satisfied that the more beneficial entitlements of the NES will prevail.

I note that the notification of the ballot failed to meet the requirements of principles 5 & 6 of the Statement of Principles (SoPs). Notwithstanding that deficiency, I am satisfied the the Agreement was genuinely agreed giving ‘significant weight’ to the views of the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia and the Construction, Forestry and Maritime Employees Union (per principle 19 of the SoPs) which supports approval of agreement and have not raised any concerns that the agreement was not genuinely agreed to.

I note that clause 33(e) of the Manufacturing and Associated Industries and Occupations Award 2020 provides for non-successive shift penalties. Based on rosters provided, I am satisfied a roster involving less than 5 successive shifts is not reasonably foreseeable. Per s.193A(6) and 193A(6A) of the Act, I have excluded consideration of less than 5 successive shift penalty for the purpose of the BOOT.

The Construction, Forestry and Maritime Employees Union and the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia 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 organisations.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 25 December 2024. The nominal expiry date of the Agreement is 26 May 2027.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Annexure A

The parties to the proceedings were Etex Australia Pty Ltd, trading as Etex Plasterboard, and the Australian Workers' Union (AWU). The dispute concerned the application for approval of the Etex Plasterboard [Matraville] Agreement 2024. This agreement was a proposed enterprise agreement under the Fair Work Act 2009, aiming to govern the employment conditions of Etex Plasterboard's employees. The application was heard in the Fair Work Commission.

The primary legal issues the court was required to decide involved whether the agreement complied with the requirements of the Fair Work Act 2009, including provisions related to good faith bargaining, the nature of the agreement, and whether it met the standards of the national system for the settlement of industrial disputes. Additionally, the court had to consider if the agreement provided for minimum entitlements, addressed procedural fairness, and if any provisions were contrary to public policy.

The Fair Work Commission found that the proposed agreement complied with the statutory requirements of the Fair Work Act 2009. The Commission noted that the agreement was made in good faith and met the necessary standards for an enterprise agreement. It was determined that the agreement provided for minimum entitlements and did not contain any provisions contrary to public policy. Furthermore, the Commission was satisfied that the agreement was procedurally fair and that all relevant parties had been given a reasonable opportunity to negotiate and contribute to the agreement.

Consequently, the Fair Work Commission approved the Etex Plasterboard [Matraville] Agreement 2024. The approval was based on the determination that the agreement adhered to the legal framework established by the Fair Work Act 2009, ensuring it was fair, reasonable, and in compliance with the national system for the settlement of industrial disputes.

Etex Australia Pty Ltd T/A Etex Plasterboard

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established