Full View Plastics Unit Trust T/A Brickwood (NSW) Pty Ltd

[2019] FWCA 6772

[2019] FWCA 6772

FAIR WORK COMMISSION

decision

Fair Work Act 2009

s.185—Enterprise agreement

Full View Plastics Unit Trust T/A Brickwood (NSW) Pty Ltd

(AG2019/3182)

Brickwood Blacktown Enterprise Agreement 2019

Manufacturing and associated industries
Commissioner Lee	MELBOURNE, 4 OCTOBER 2019

Application for approval of the Brickwood Blacktown Enterprise Agreement 2019.

1. An application has been made for approval of an enterprise agreement known as the Brickwood Blacktown Enterprise Agreement 2019 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Full View Plastics Unit Trust T/A Brickwood (NSW) Pty Ltd (the Applicant). The Agreement is a single enterprise agreement.

1. The Applicant 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. On 8 August 2019, the Applicant wrote to the Commission advising that the parties agree not to publish the pay rates contained in clause 22 of the Agreement. The letter provided rates of pay and advice from the Applicant that employees were made aware when voting to approve the agreement, that the wage rates schedule will be submitted to the Commission when lodging the Agreement.

1. Subsequently, the matter was listed for Hearing 13 September 2019.

1. Clause 22 of the Agreement provides annual percentage increases to the rates of pay. I also note that the Manufacturing and Associated Industries Award 2010 is incorporated. As the Award is incorporated and the 2.5% increase is applied to the test time rates of pay, I do not have a concern with respect to the Better Off Overall Test (BOOT). At the hearing, I advised the parties that I cannot accept an undertaking in relation to the BOOT if I do not have a concern in relation to this.

1. However, it was clear that employees were advised prior to voting to approve the Agreement, that they will receive rates of pay consistent with the rates of pay provided to the Commission on 8 August 2019. Therefore, I have a concern with respect to genuine agreement which can be remedied by way of undertaking.

1. The undertaking provided by the Applicant at Annexure A of this decision clearly incorporates by reference the document titled ‘Brickwood Blacktown Enterprise Agreement 2019 – Wage Table’ and is therefore an enforceable term of the Agreement. This has satisfied my concerns with respect to genuine agreement. 

1. I advised the parties at the Hearing that although the document titled ‘Brickwood Blacktown Enterprise Agreement 2019 – Wage Table’ would be publicly available on the Commission’s file should anyone, such as an employee, request access to it.

1. The National Union of Workers 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.

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

·           Clause 21 – Termination of Employment

·           Clause 33 – Annual Leave

·           Clause 34 (c) – Personal Leave

·           Clause 35 (c)  – Compassionate Leave

However, noting clause 9 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 October 2019. The nominal expiry date of the Agreement is 30 June 2023.

COMMISSIONER

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Annexure A