Laminex Group Pty Limited T/A Laminex

[2019] FWCA 2399

[2019] FWCA 2399

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Laminex Group Pty Limited T/A Laminex
(AG2019/319)

LAMINEX BALLARAT COMPONENTRY PLANT AGREEMENT 2019

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

Application for approval of the Laminex Ballarat Componentry Plant Agreement 2019.

[1] An application has been made for approval of an enterprise agreement known as the Laminex Ballarat Componentry Plant Agreement 2019 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act) by Laminex Group Pty Limited T/A Laminex. The agreement is a single enterprise agreement.

[2] The matter was allocated to my Chambers on 27 February 2019.

[3] On 8 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] Section 174 of the Act prescribes the content of the Notice of Employee Representational Rights (NERR). The Applicant distributed a pre-April 2017 NERR and that the title of the proposed Agreement contained a different year compared to the Agreement sought to be approved. I note that the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) was a bargaining agent and twenty-five of twenty-seven employees participated in the vote. I am satisfied (taking into consideration s.188(2) of the Act and the decision in Huntsman Chemical Company Australia Pty Limited T/A RMAX Rigid Cellular Plastics & Others 1) that the procedural or technical error is minor and that the employees were not likely to have been disadvantaged, and accordingly, that there has been a genuine agreement.

[5] The Applicant has submitted an undertaking in the required form dated 14 March 2019. The undertaking deals with the following topics:

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

•  Schedule 1, clause 1 and clause 2 of the Agreement will not apply

•  Despite schedule 1, clauses 5 and 9 of the Agreement, the abandonment of employment provisions will operate subject to the NES notice of termination provisions.

•  Despite clause 26 of the Agreement, the quantum of annual leave will be in accordance with the NES.

•  Despite clause 26 of the Agreement, the cashing out of annual leave provisions will operate in accordance with the NES, such that the minimum remaining entitlement to paid leave is not less than four weeks. In addition, schedule 1, clause 21.7 of the Agreement shall not apply to the extent of any inconsistency with clause 26 in the body of the Agreement.

•  The definition of a shift worker will be for the purposes of the NES.

•  Despite schedule 1, clause 22.4.2 and clause 24A of the Agreement, the quantum of personal leave shall be in accordance with the NES.

•  Despite schedule 1, clause 22.5 of the Agreement, the entitlement to unpaid carers leave shall be in accordance with the NES.

•  Despite schedule 1, clause 25 of the Agreement, the entitlement to parental leave shall be in accordance with the NES, and clause 25.2.2 of the Agreement will not apply.

•  Despite schedule 1, clause 16, time off in lieu will be provided at penalty time for time worked.

•  Despite schedule 1, clause 18.4 of the Agreement, the major portion of ordinary shifts which falls on a public holiday will be paid at double time and a half.

•  Schedule 1, clause 6 of the Agreement will not apply.

•  Schedule 1, clause 8.7.1. of the Agreement (Redundancy – Employees Exempted), will be amended to only exclude persons dismissed for serious misconduct as defined in the Fair Work Regulations 2009, casual employees and employees engaged for a fixed term or task.

[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 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] As the Agreement does not contain a flexibility term which meets the requirements of s.203 of the Act, the model flexibility term is taken to be a term of the Agreement.

[9] The 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.

[10] 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.

[11] 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 January 2022.

COMMISSIONER

 1   [2019] FWCFB 245.

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