Kimberly-Clark Australia Pty Limited

[2019] FWCA 2397

[2019] FWCA 2397

FAIR WORK COMMISSION

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

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