Henkel Australia Pty Ltd T/A Henkel

[2024] FWCA 3116

[2024] FWCA 3116

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Henkel Australia Pty Ltd T/A Henkel

(AG2024/2948)

HENKEL AUSTRALIA KILSYTH ENTERPRISE AGREEMENT 2024 – 2027

Manufacturing and associated industries
DEPUTY PRESIDENT MILLHOUSE	MELBOURNE, 27 AUGUST 2024

Application for approval of the Henkel Australia Kilsyth Enterprise Agreement 2024 – 2027

1. An application has been made for approval of an enterprise agreement known as the Henkel Australia Kilsyth Enterprise Agreement 2024 – 2027 (Agreement). The application was made pursuant to s 185 of the Fair Work Act 2009 (Cth) (Act). It has been made by Henkel Australia Pty Ltd T/A Henkel (Employer). The Agreement is a single enterprise agreement.

1. The Employer has provided written undertakings. A copy of the undertakings is attached at 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 requirement of ss 186, 187, 188 and 190 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). In relation to s 193A(6) and (6A) of the Act, I do not consider the performance of work on afternoon shift or night shift to be a pattern or kind of work that is reasonably foreseeable at test time having regard to the arrangements performed at the enterprise since 2020.

1. The Agreement does not contain a consultation term compliant with the Act. Pursuant to s 205(2) of the Act, the model consultation term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.

1. Pursuant to s 205A(2) of the Act, the workplace delegates’ rights term prescribed by the Manufacturing and Associated Industries and Occupations Award 2020 is taken to be a term of the Agreement.

1. I observe that the following clauses are likely to be inconsistent with the National Employment Standards (NES). However, noting clause 7.2 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:

·   Hours of work: The Agreement is silent on how many ordinary hours will be worked each week by employees. The Agreement provides that overtime and casual rates will be based on 1/36^th of the weekly rate. On this basis it appears that ordinary hours will be 36 hours per week. However, this is not explicit so employees may be required to work in excess of 36 hours, or the 38 hours per week as provided by s 62 of the Act.

·   Compassionate leave: Clause 31 of the Agreement provides compassionate leave where a member of an employee’s immediate family or household contracts or develops a serious illness, sustains a serious injury or dies, however it is silent in relation to compassionate leave for stillbirth/miscarriage as is provided by s 104(1)(b) and (c) of the Act.

·   Public holidays: Clause 36.1.7 of the Agreement provides for majority agreement between employees and the employer to the substitution of public holidays whereas s 115(3) of the Act provides for an employee to individually agree with the employer.

1. The United Workers’ Union 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) of the Act I note that the Agreement covers the organisation.

1. The Agreement is approved and, in accordance with s 54 of the Act will operate from 3 September 2024. The nominal expiry date of the Agreement is 30 June 2027.

DEPUTY PRESIDENT

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Annexure A