ITW Australia Pty Ltd T/A ITW Proline

[2019] FWCA 6978

[2019] FWCA 6978

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement

ITW Australia Pty Ltd T/A ITW Proline
(AG2019/3177)

ITW PROLINE - VICTORIA - NATIONAL UNION OF WORKERS COMPREHENSIVE ENTERPRISE AGREEMENT 2019

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DEPUTY PRESIDENT BULL	SYDNEY, 10 OCTOBER 2019

Application for approval of the ITW Proline - Victoria - National Union of Workers Comprehensive Enterprise Agreement 2019.

[1] An application has been filed by ITW Australia Pty Ltd T/A ITW Proline(the applicant) for the approval of an enterprise agreement known as the ITW Proline - Victoria - National Union of Workers Comprehensive Enterprise Agreement 2019 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single-enterprise agreement as per s.172(2) of the Act.

[2] The Commission raised with the applicant that one of the superannuation funds listed in Clause 22.2(2) of the Agreement, being the ‘ITW PROLINE – VICTORIA Superannuation Fund (Plum Superannuation Fund – ITW)’ (Plum Super), does not appear to be a compliant fund within the meaning of s.194(h) of the Act. The employer confirmed that Plum Super have since advised the employer that the relevant complying fund is in fact the MLC Super Fund and provided a letter of compliance to the Commission.

[3] The employer has also provided undertakings regarding the definition of shift workers and the non-engagement of apprentices under the Agreement.

[4] A copy of the undertakings is attached at the end of the Agreement. I am satisfied pursuant to s.190(3) of the Act that the undertakings will not cause financial detriment to any employee covered by the Agreement and that the undertakings will not result in substantial change to the Agreement. Pursuant to s.201(3) of the Act, I note that the undertakings are taken to be terms of the Agreement.

[5] Subject to the undertakings referred to above, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 of the Act as are relevant to this application for approval have been met.

[6] The National Union of Workers (NUW), 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 NUW.

[7] The Commission raised with the employer that clause 48 of the Agreement, which provides the flexibility term for the Agreement, does not provide that any Individual Flexibility Arrangement (IFA) agreed to under the term must be able to be terminated as required by s.203(6) of the Act.

[8] Pursuant to s.190(4) of the Act, the views of the NUW as bargaining representative for the Agreement were sought regarding the undertakings proffered by the employer. The NUW confirmed that while it did not oppose the undertakings regarding the definition of shift workers and the non-engagement of apprentice under the Agreement, it did request a revised undertaking from the employer that any IFA agreed to under clause 48 of the Agreement can be terminated pursuant to s.203(6) of the Act. The NUW submitted that the model flexibility term should not be inserted in the Agreement.

[9] I note that despite the request of the AMWU the Commission cannot accept an undertaking to correct deficiencies of a flexibility term (or a consultation term) because they are not concerns about matters in ss.186 and 187 of the Act.

[10] Accordingly, 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. A copy of the model flexibility term is attached at the end of the Agreement.

[11] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 7 days from the date of approval. The nominal expiry date of the Agreement is 1 May 2022.

DEPUTY PRESIDENT

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