Flowline Industries Pty Ltd T/A Flowline Industries

[2023] FWCA 2824

[2023] FWCA 2824

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Flowline Industries Pty Ltd T/A Flowline Industries

(AG2023/2839)

FLOWLINE & UNITED WORKERS UNION ENTERPRISE AGREEMENT 2023-2026

Manufacturing and associated industries
DEPUTY PRESIDENT O’NEILL	MELBOURNE, 4 SEPTEMBER 2023

Application for approval of the Flowline & United Workers Union Enterprise Agreement 2023 - 2026

1. An application has been made for approval of an enterprise agreement known as the Flowline & United Workers Union Enterprise Agreement 2023 - 2026 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Flowline Industries Pty Ltd T/A Flowline Industries. The Agreement is a single enterprise agreement.

1. The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) (Amending Act) made a number of changes to enterprise agreement approval processes in Part 2-4 of the Fair Work Act, that commenced operation on 6 June 2023.

1. Under transitional arrangements, amendments made by Part 14 of Schedule 1 to the Amending Act in relation to genuine agreement requirements for agreement approval applications apply where the notification time for the agreement was on or after 6 June 2023. The genuine agreement provisions in Part 2-4 of the Fair Work Act, as it was just before 6 June 2023, continue to apply in relation to agreement approval applications where the notification time for the agreement was before 6 June 2023. The notification time for the Agreement was before 6 June 2023. The Agreement was made on or after 6 June 2023.

1. The Agreement provides for a span of ordinary hours from 6.00am – 8.00pm. This is a longer span than under clause 17.2 (d) of the relevant Award, which provides for a span of hours from 6:00am – 6:00pm (which may be moved 1 hour forward or back). The Applicant advised that the span of hours from 6.00-8:00 pm is neither a current nor foreseeable rostered hours arrangement in the workplace. Having regard to this advice and to the nature of the enterprise, I consider that the pattern of work that is reasonably foreseeable involves a span of hours from 6.00am – 6.00pm, for the purposes of the Better Off Overall Test and s193A(6) of the Act.

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.

1. 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.

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. The UWU supports approval of the Agreement.

1. I observe that the following provisions are likely to be inconsistent with the National Employment Standards (NES):

·           Clause 17.3.2 – Casual employment;

·           Clause 21.1.6 – Notice of termination by employer;

·           Clause 36.7.2 – Public holidays falling within annual leave;

·           Clause 37.5 – Compassionate leave;

·           Clause 38 – Parental leave; and

·           Clause 41.5.1 – Absences.

However, noting clause 10.2 of the Agreement, I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

1. The Agreement is approved and, in accordance with s.54 of the Act, will operate from 11 September 2023. The nominal expiry date of the Agreement is 24 August 2026.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<AE521366  PR765834>

Annexure A

IN THE FAIR WORK COMMISSION

FWC Matter No.:

AG2023/2839

Applicant:

Flowline Industries Pty Ltd

Section 185 – Application for approval of a single enterprise agreement

Undertaking – Section 190

I, Paul James Young, Managing Director, have the authority given to me by Flowline Industries Pty Ltd to give the following undertakings with respect to the Flowline & United Workers Union Enterprise Agreement 2023 - 2026 ("the Agreement"):

Article I.  1.         Classification Matching

Article II. We acknowledge the below matching classifications between the Agreement and the Manufacturing and Associated Industries and Occupations Award 2020:

Modern Award Classification	Agreement Classification
C14	Production Worker Basic
C12	Productions Worker General
C10	Production Worker Advanced Level 1
C9	Production Worker Advanced Level 2
Supervisor/Trainer/Coordinator Level 1 (A.4.2)	Leading Hand
Supervisor/Trainer/Coordinator Level 2 (A.4.2)	Leading Hand - Senior
C11	Warehouse Level 1
Supervisor/Trainer/Coordinator Level 1 (A.4.2)	Warehouse Level 2

1. Public holidays 

(a)          A day worker required to work overtime on a public holiday must be paid 250% of the ordinary hourly rate until the employee is relieved from duty with a minimum payment of 3 hours.

(b)         A continuous shiftworker required to work overtime on a public holiday must be paid 200% of the ordinary hourly rate with a minimum payment of 3 hours.

(c)          A non-continuous shiftworker required to work overtime on a public holiday must be paid 250% of the ordinary hourly rate until the employee is relieved from duty with a minimum payment of 3 hours.

These undertakings are provided on the basis of issues raised by the Fair Work Commission in the application before the Fair Work Commission.

____________________________
Signature

01/09/2023
____________________________
Date