FMC Manufacturing Pty Ltd T/A FMC Manufacturing Pty Ltd

[2024] FWCA 3141

[2024] FWCA 3141

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

FMC Manufacturing Pty Ltd T/A FMC Manufacturing Pty Ltd

(AG2024/2931)

FMC MANUFACTURING PTY LTD ENTERPRISE AGREEMENT 2024

Manufacturing and associated industries
COMMISSIONER FOX	MELBOURNE, 30 AUGUST 2024

Application for approval of the FMC Manufacturing Pty Ltd Enterprise Agreement 2024

1. An application has been made for approval of an enterprise agreement known as the FMC Manufacturing Pty Ltd Enterprise Agreement 2024 (the Agreement). The Application was made pursuant to s.185 of the Fair Work Act 2009 (Cth) (the Act). The Agreement is a single enterprise agreement.

1. I am satisfied that each requirement of ss.186, 187 and 188 of the Act as are relevant to this application for approval have been met. For the purposes of the better off overall test, I have had regard to each of the matters in s.193A(2)-(7) of the Act.

1. The Form F17B indicated that employees were notified of the details of the vote on 8 July 2024. I note that the vote commenced less than seven clear days later, on 15 July 2024. The Form F17B further states that all 12 employees who will be covered by the Agreement cast a valid vote, and 11 voted to approve the Agreement. To satisfy the requirements under s.186(2)(a) that the Agreement was genuinely agreed to by the employees, the Commission must consider whether the employer has taken all reasonable steps to explain the Agreement to the employees and that the explanation was provided in a manner appropriate to the circumstances and needs of the employees per s.188(1) and s.180(5) as well as paragraphs 8-14 of the Statement of Principles on Genuine Agreement. In the circumstances, I am satisfied that despite the shorter access period, employees were not likely to be disadvantaged, and the Agreement was genuinely agreed to.

1. In addition, the Notice of Employee Representational Rights which was provided to employees is one which pre-dates the 6 June 2023 reforms. Per s.188(5) of the Act, I am satisfied that the Agreement would have been genuinely agreed to but for the minor technical error made in relation to the requirements set out in s.174(1A) of the Act. I am satisfied that the employees to be covered by the Agreement were not likely to have been disadvantaged by the error and that the Agreement has been genuinely agreed within the meaning of s 188(5) of the Act.

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

·Personal/ Carer’s Leave: Clause 25.1(a) of the Agreement provides that an employee who is unable to attend work due to personal illness or the illness of an immediate family member or member of the employee’s household, is required to report to their supervisor as soon as reasonably practicable before the commencement of their shift or within 2 hours of normal starting time. This appears to inconsistent with the notice requirement per s.107(2)(a) of the Act.

1. However, noting clause 1.6 of the Agreement, I am satisfied that the more beneficial entitlements of the NES in the Act will prevail where there is an inconsistency between the Agreement and the NES.

1. The Agreement does not contain a delegates’ rights term, as required by s.205A(1) of the Act. I note that clause 1.5(a) of the Agreement wholly incorporates the Manufacturing and Associated Industries and Occupations Award 2020. As such, the workplace delegates’ rights term in Clause 40A of the Manufacturing and Associated Industries and Occupations Award 2020 is taken to be a term of the Agreement.

1. The “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union and the United Workers’ Union being bargaining representatives for the Agreement support the approval of the Agreement and 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 these organisations.

1. The Agreement is approved and, in accordance with s.54 of the Act, will operate from 6 September 2024. The nominal expiry date of the Agreement is 31 May 2026.

COMMISSIONER

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