IVE Employment PWO2 Pty Ltd

[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

In this matter, IVE Employment PWO2 Pty Ltd applied to the Fair Work Commission for the approval of the IVE Print Web Offset Warwick Farm and Bibra Lake Enterprise Agreement 2023. The applicant sought to have the agreement certified as a single-employer enterprise agreement, which would then apply to employees working in the print web offset industry at the Warwick Farm and Bibra Lake locations. The application was brought under the Fair Work Act 2009, which provides for the registration and regulation of enterprise agreements by the Fair Work Commission.

The primary legal issues before the Commission were whether the agreement met the criteria for certification under the Fair Work Act, and whether the process by which it was negotiated was procedurally fair. The Commission had to consider whether the agreement was made in good faith, whether it contained the necessary provisions, and whether it was appropriate to approve it as a single-employer agreement. The applicant argued that the agreement had been negotiated in good faith and contained all the necessary provisions for certification. The applicant also submitted that the agreement was appropriate for certification as a single-employer agreement, given the shared interests of the employees at both locations.

The Commission found that the agreement met the criteria for certification under the Fair Work Act. It was satisfied that the agreement had been negotiated in good faith and contained all the necessary provisions. The Commission also found that it was appropriate to approve the agreement as a single-employer agreement, given the similarities in the work and conditions of the employees at both locations. The Commission was satisfied that the process by which the agreement was negotiated was procedurally fair, and that the agreement would provide for the efficient and productive operation of the enterprise.

The Fair Work Commission approved the IVE Print Web Offset Warwick Farm and Bibra Lake Enterprise Agreement 2023 as a single-employer enterprise agreement. The Commission certified the agreement, effective from the date of the decision. The applicant's application for approval was thus successful, and the agreement will now apply to the employees working in the print web offset industry at the Warwick Farm and Bibra Lake locations.

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Legal Principle Established