IVE Employment PWO2 Pty Ltd
[2023] FWCA 710
•7 MARCH 2023
| [2023] FWCA 710 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.185—Enterprise agreement
IVE Employment PWO2 Pty Ltd
(AG2023/375)
IVE Print Web Offset Warwick Farm and Bibra Lake Enterprise Agreement 2023
| Publishing industry | |
| DEPUTY PRESIDENT MILLHOUSE | MELBOURNE, 7 MARCH 2023 |
Application for approval of the IVE Print Web Offset Warwick Farm and Bibra Lake Enterprise Agreement 2023
An application has been made for approval of an enterprise agreement known as the IVE Print Web Offset Warwick Farm and Bibra Lake Enterprise Agreement 2023 (Agreement). The application was made pursuant to s 185 of the Fair Work Act 2009 (Cth) (Act). It has been made by IVE Employment PWO2 Pty Ltd (Employer). The Agreement is a single enterprise agreement.
Contrary to the requirement in s 180(3) of the Act, employees were notified on 7 February 2023 of the time and place at which the vote will occur, and the vote commenced less than seven clear days later, on 14 February 2023. Having regard to the material before the Commission, including the number of employees covered by the Agreement who cast a valid vote, I am satisfied that:
(a) the error identified at [2] constitutes a minor procedural or technical error for the purposes of s 188(2)(a); and
(b) the employees to be covered by the Agreement were not likely to have been disadvantaged by the error.[1]
The Employer 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.
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.
Pursuant to s 205(2) of the Act, the model consultation term prescribed by the Fair Work Regulations 2009 (Cth) is taken to be a term of the Agreement.
The Agreement appears to incorporate the Graphic Arts – General – Award 2000 as it stood on 1 March 2000 (pre-reform Award) at clause 6.1. I observe that the following clauses are likely to be inconsistent with the National Employment Standards (NES). However, noting undertaking [2], I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES:
(a)Although the Agreement refers to personal leave entitlements, clause 7.2 of the pre-reform Award provides entitlements for personal leave that will also apply. Many of these entitlements are less beneficial and provide restrictions not provided for under Division 7 of the Act:
a.Clause 7.2.2 of the pre-reform Award appears to set out a table outlining how personal leave accrues.
b.Clause 7.2.3 of the pre-reform Award also states that personal leave may accumulate to a maximum of 640 hours. The Act provides that leave accrues progressively and does not provide a limit on the accrual of personal leave.
c.Additionally, personal leave entitlements under the pre-reform Award (in particular at clause 7.2.5) appear to be in hours not days as per s 96(1) of the Act.
d.Clause 7.2.5(b) states that in normal circumstances an employee is not entitled to take personal leave to care for an immediate family or household member where another person has taken leave to care for the same person.
e.Clause 7.2.6 provides that notice should be before the employee’s ordinary hours on the first day of such absence. Section 107(2) of the Act states that this is “as soon as practicable (which may be a time after the leave has started).”
(b)The Agreement appears to be silent on compassionate leave however clause 7.2 of the pre-reform Award states that employees can use 24 hours of their personal leave as bereavement leave. Additionally, clause 7.2A states employees receive 16 hours of bereavement leave per occasion. Both of the above appear to be inconsistent with Division 7 Subdivision C of the Act.
(c)The Agreement appears to be silent in relation to parental leave entitlements however the pre-reform Award contains some less beneficial entitlements than the NES (such as for concurrent leave) at Division 5 of the Act.
(d)The Agreement appears to be silent in relation to termination of employment however clause 4.2.1(e)(ii) of the pre-reform Award purports to exclude apprentices from receiving notice of termination, inconsistent with Division 11 Subdivision A of the Act.
The “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU), 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.
The Agreement is approved and, in accordance with s 54 of the Act, will operate from 14 March 2023. The nominal expiry date of the Agreement is 31 December 2024.
DEPUTY PRESIDENT
Annexure A
[1] Huntsman Chemical Company Australia Pty Limited t/a RMAX Rigid Cellular Plastics and Others [2019] FWCFB 318
Printed by authority of the Commonwealth Government Printer
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