Etex Australia Pty Ltd T/A Knauf Plasterboard

[2021] FWCA 5425

[2021] FWCA 5425

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Etex Australia Pty Ltd T/A Knauf Plasterboard
(AG2021/6615)

ETEX AUSTRALIA PTY LTD [BUNDABERG] AGREEMENT 2021

Manufacturing and associated industries
COMMISSIONER HUNT	BRISBANE, 1 SEPTEMBER 2021

Application for approval of the Etex Australia [Bundaberg] Agreement 2021.

[1] Etex Australia Pty Ltd T/A Knauf Plasterboard (the Employer) has applied for approval of an enterprise agreement known as the Etex Australia [Bundaberg] Agreement 2021 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single-enterprise agreement.

[2] The Agreement does not contain wage rates to be paid to employees covered by the Agreement. Rather, the Employer provided a document titled “Confidential briefing document – Commitment to Wage rises and Increases” for the consideration of the employees covered by the Agreement, together with the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) and the Electrical, Energy and Services Division, Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (ETU) during the negotiation of the Agreement.

[3] The Employer sought that the Agreement be approved and the document referred to in [2] be kept confidential between the Employer, the employees covered by the Agreement, the CFMMEU and the ETU. It is, of course, necessary for the Fair Work Commission (the Commission) to have regard to the document to undertake the better off overall test

[4] I have had regard to the Full Bench decision in The Australian Workers’ Union v Oji Foodservice Packaging Solutions (Aus) Pty Ltd [2018] FWCFB 7501 [Oji]. I did not consider that the Employer’s proposal would offend the rationale of the decision in Oji, so long as the Employer provided an appropriate undertaking as follows:

“The document, “Confidential briefing document – Commitment to Wage rises and Increases” is incorporated as an enforceable term of the Agreement and will be provided to any employee covered by the Agreement upon request or to the CFMMEU or the ETU.”

[5] On 26 August 2021, the employer provided the undertakings attached at Annexure A.

[6] Pursuant to s.190(4) of the Act, I sought the views of the two employee representatives, along with the CFMMEU and the ETU regarding the undertakings, allowing a period of two business days from receipt of the undertakings to provide any views. Neither of the employee representatives or the unions provided any views.

[7] 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.190 of the Act, I accept the undertakings. In accordance with s.201(3) of the Act, I note that the undertakings are taken to be a term of the Agreement.

[8] I have taken into consideration the material filed in the Commission. 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. The Agreement does not cover all of the employees of the employer, however, taking into account s.186(3) and (3A) I am satisfied that the group of employees was fairly chosen.

[9] The CFMMEU and the ETU, 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 the CFMMEU and the ETU.

[10] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 8 September 2021. The nominal expiry date of the Agreement is 8 September 2024.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

<AE512942  PR733410>

ANNEXURE A