Henkel Australia Pty Ltd T/A Henkel

[2019] FWCA 7483

[2019] FWCA 7483

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Henkel Australia Pty Ltd T/A Henkel
(AG2019/3336)

HENKEL AUSTRALIA KILSYTH ENTERPRISE AGREEMENT 2019 - 2021

Manufacturing and associated industries
DEPUTY PRESIDENT YOUNG	MELBOURNE, 30 OCTOBER 2019

Application for approval of the Henkel Australia Kilsyth Enterprise Agreement 2019 - 2021.

[1] Henkel Australia Pty Ltd (the Employer) has made an application for approval of an enterprise agreement known as the Henkel Australia Kilsyth Enterprise Agreement 2019 - 2021 (the Agreement) pursuant to s 185 of the Fair Work Act 2009 (the Act). The Agreement is a single-enterprise agreement.

[2] The Employer did not provide 7 clear days between the date notification of the vote occurred and the date that the vote took place. The Employer provided submissions as to the error on 25 September 2019. I am satisfied having regard to the Full Bench decision in Huntsman Chemical Company Australia Pty Ltd T/A RMAX Rigid Cellular Plastics & Others 1(Huntsman)that this constitutes a minor technical or procedural error for the purposes s 188(2)(a) of Act. Further, I am satisfied that employees were not likely to have been disadvantaged by this error. Accordingly, notwithstanding the error, I am satisfied that the Agreement has been genuinely agreed within the meaning of s 188(2).

[3] 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 the undertakings will not result in substantial changes to the Agreement. The undertakings are taken to be a term of the agreement.

[4] Subject to the undertakings referred to above, and on the basis of the material contained in the application, the accompanying statutory declaration, and the additional information provided by the Employer, 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.

[5] 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.
[6] Pursuant to s 202(4) of the Act, the model flexibility term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.

[7] I observe that clauses 16.6.2, 28.1.1(e)(i), 28.1.1(e)(ii), 29.3.4 and 30.1.3 of the Agreement are likely to be inconsistent with the National Employment Standards (NES). However, noting the undertaking provided by the Employer, I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

[8] The National Union of Workers, being a bargaining representative for the Agreement, has given notice under s 183 of the Act that it seeks to be covered by the Agreement. In accordance with s 201(2) and based on the statutory declaration provided by the organisation, I note that the Agreement covers the organisation.

[9] The Agreement was approved on 30 October 2019 and, in accordance with s 54, will operate from 6 November 2019. The nominal expiry date of the Agreement is 30 June 2021.

DEPUTY PRESIDENT

Annexure A

 1   [2019] FWCFB 318

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