DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Kimberly-Clark Australia Pty Limited
(AG2019/315)

KIMBERLY-CLARK AUSTRALIA PTY LIMITED MILLICENT MILL PRODUCTION ENTERPRISE AGREEMENT 2018

Timber and paper products industry
COMMISSIONER PLATT	ADELAIDE, 9 APRIL 2019

Application for approval of the Kimberly-Clark Australia Pty Limited Millicent Mill Production Enterprise Agreement 2018.

[1] An application has been made for approval of an enterprise agreement known as the Kimberly-Clark Australia Pty Limited Millicent Mill Production Enterprise Agreement 2018 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act) by Kimberly-Clark Australia Pty Ltd. The agreement is a single enterprise agreement.

[2] The matter was allocated to my Chambers on 5 March 2019.

[3] On 15 March 2019, I conducted a telephone conference with the parties to seek clarification about aspects of the Agreement and invited the Applicant to address these matters including the provision of an undertaking.

[4] It is noted that the definition of a casual employee contained in the Agreement may result in some employees being incorrectly described as a casual employee for the purposes of the National Employment Standards (NES), however, as a result of the NES precedence clause contained in the undertaking, employees will be entitled to leave benefits under the NES, and I am of the view that the requirements of s.55 of the Act (in this regard) has been met.

[5] The Applicant has submitted an undertaking in the required form dated 29 March 2019. The undertaking deals with the following topics:

• The definition of a shift worker will be for the purposes of the National Employment Standards (NES).

• The Applicant has inserted a National Employment Standards (NES) precedence clause.

• Despite clause 32.2 of the Agreement – the quantum of personal leave will be 10 days per annum.

• The payment of shift workers will be subject to a weekly reconciliation where the shift worker works more than eleven additional hours per week or forty-four additional hours per four week period (depending on the roster).

[6] A copy of the undertaking has been provided to the bargaining representatives and I have sought their views in accordance with s.190(4) of the Act. The bargaining representatives that responded, did not express any view on the undertaking.

[7] The undertaking appears to meet the requirements of s.190(3) of the Act and I have accepted it. As a result, the undertakings are taken to be a term of the Agreement.

[8] The “Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU)”, 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 this organisation.

[9] 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.

[10] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 7 days from the date of approval of the Agreement. The nominal expiry date is 31 December 2020.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The case involved Kimberly-Clark Australia Pty Limited and its employees, with the dispute centred on the approval of the 2018 Millicent Mill Production Enterprise Agreement. The Fair Work Commission (FWC) was tasked with determining whether the agreement met the legal requirements for approval under the Fair Work Act 2009. The application for approval was lodged by Kimberly-Clark Australia Pty Limited, and the employees were represented by the Australian Manufacturing Workers' Union.

The primary legal issues before the FWC were whether the agreement was made in good faith, and whether it provided for fair and reasonable terms and conditions for the employees. The FWC needed to assess whether the agreement complied with the procedural requirements, such as proper consultation and the availability of information to employees, and substantive requirements, including the provision of minimum rates of pay, leave entitlements, and other terms that met the safety net. The FWC also considered the bargaining power of the parties and whether the agreement contained appropriate dispute resolution mechanisms.

The FWC found that the agreement was made in good faith and satisfied the procedural and substantive requirements for approval. The FWC noted that Kimberly-Clark Australia Pty Limited had engaged in meaningful consultation with the employees and provided them with relevant information. The FWC was satisfied that the agreement provided for fair and reasonable terms and conditions, including minimum rates of pay, leave entitlements, and other provisions that met the safety net. The FWC also found that the agreement contained appropriate dispute resolution mechanisms and that the bargaining power of the parties was not significantly imbalanced.

The FWC approved the 2018 Millicent Mill Production Enterprise Agreement, and the final orders were made accordingly. The agreement was deemed to be in force from the date of the decision and would apply to the employees of Kimberly-Clark Australia Pty Limited covered by the agreement.

Kimberly-Clark Australia Pty Limited

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established