L’Oréal Australia Pty Ltd

[2021] FWCA 2432

[2021] FWCA 2432

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

L’Oréal Australia Pty Ltd
(AG2021/4687)

L'ORÉAL AUSTRALIA PTY LTD (WAREHOUSE) AND UNITED WORKERS UNION ENTERPRISE AGREEMENT 2021

Storage services
COMMISSIONER LEE	MELBOURNE, 3 MAY 2021

Application for approval of the L'Oréal Australia Pty Ltd (Warehouse) and United Workers Union Enterprise Agreement 2021.

[1] An application has been made for approval of an enterprise agreement known as the L'Oréal Australia Pty Ltd (Warehouse) and United Workers Union Enterprise Agreement 2021 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by L’Oréal Australia Pty Ltd. The Agreement is a single enterprise agreement.

[2] 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.

[3] 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.

[4] A copy of the notice of employee representational rights (NERR) was emailed to one of the employees on 18 March 2021. The notification time for the Agreement was 3 September 2020. As such, the Employer did not give this employee the NERR by a date not later than 14 days after the notification time for the Agreement in accordance with s.173(3) of the Act. The remainder of employees were given the NERR not later than 14 days after the notification time for the Agreement. The Employer provided submissions explaining how the error occurred. In the circumstances, I am satisfied that this constitutes a minor procedural or technical error for the purposes of s.188(2)(a). Further, I am satisfied that the employees covered by the Agreement were not likely to have been disadvantaged by the error. As a result, I am satisfied that the Agreement has been genuinely agreed to by the employees covered by the Agreement within the meaning of s.188 of the Act.

[5] Pursuant to s.205(2) of the Act, the model consultation term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.

[6] The United Workers’ Union 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.

[7] I observe that the following provisions are likely to be inconsistent with the National Employment Standards (NES):

•  Clause16.1.5 – Termination of employment;

•  Clause 28.4 – Annual leave;

•  Clause 29.1(c) – Personal/carer’s leave; and

•  Clause 35.1.2 – Public holidays;

However, noting the written undertakings provided by the Employer, I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

[8] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 10 May 2021. The nominal expiry date of the Agreement is 31 March 2024.

COMMISSIONER

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Annexure A