Laminex Group Pty Limited T/A Laminex

[2024] FWCA 1641

[2024] FWCA 1641

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185 - Application for approval of a single-enterprise agreement

Laminex Group Pty Limited T/A Laminex

(AG2024/1378)

LAMINEX CHELTENHAM PLANT PRODUCTION AGREEMENT 2023

Timber and paper products industry
DEPUTY PRESIDENT BELL	MELBOURNE, 3 MAY 2024

Application for approval of the Laminex Cheltenham Plant Production Agreement 2023

1. An application has been made for approval of an enterprise agreement known as the Laminex Cheltenham Plant Production Agreement 2023 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (Cth) (the Act). It has been made by the employer, Laminex Group Pty Limited T/A Laminex. The Agreement is a single enterprise agreement.

1. The notification time for the Agreement under s.173(2) was 12 January 2023 and the Agreement was made on 12 April 2024. Accordingly, the genuine agreement requirements are assessed under the Act as those applying before 6 June 2023 and the better off overall test is that applying on and from 6 June 2023.[1]

1. Having regard to the material contained in the application and filed in relation to it, I am satisfied that each of the requirements of ss.186, 187, 188, 193 and 193A as are relevant to this application for approval have been met. The Agreement does not cover all of the employees of the employer. However, taking into account the factors in sections 186(3) and (3A), I am satisfied that the group of employees was fairly chosen.

1. The Construction, Forestry and Maritime Employees Union (CFMEU) 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.

1. The Agreement was approved on 3 May 2024 and, in accordance with s.54, will operate from 10 May 2024. The nominal expiry date of the Agreement is 12 April 2027.

Variation

1. The Agreement lodged, at clause 4 refers to the ‘Construction, Forestry, Maritime, Mining and Energy Union’ as a party to the Agreement. In its Form F18, the union has requested that this be varied under s 586 of the Act to the ‘Construction, Forestry and Maritime Employees Union’, to reflect the union’s current name. It also requested a correlative amendment from ‘CFMMEU’ to ‘CFMEU’ in the same clause.

1. While s 586 is, in some (limited) circumstances capable of supporting an amendment by the Commission to an enterprise agreement,[2] for errors of the kind before me I consider that s 218A is the more appropriate statutory basis. Section 218A permits the Commission to vary an enterprise agreement to correct or amend an obvious error, defect or irregularity (whether in substance or form). I am satisfied that the errors in clause 4 of the Agreement are obvious errors and that it is appropriate to amend them on my own initiative.

1. I order, pursuant to s.218A of the Act, that the Agreement be varied to correct the obvious errors at clause 4 of the Agreement as follows.

1.   By deleting the reference to “Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU)” in clause 4(c) of the Agreement, and replacing it with “Construction, Forestry and Maritime Employees Union (CFMEU)”.

2.   By deleting the reference to “CFMMEU” in clause 4(d)(v) of the Agreement and replacing it with “CFMEU”.

3.   The variation will operate from 3 May 2024.

1. This variation will operate from 3 May and the published Agreement is to be read as containing the corrections described above.

DEPUTY PRESIDENT

[1] The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) made a number of changes to enterprise agreement approval processes in Part 2-4 of the Fair Work Act. Those changes broadly commenced operation on 6 June 2023, subject to various transitional arrangements that included those to effect described above.

[2] Australian Nursing and Midwifery Federation v Domain Aged Care (QLD) Pty Ltd T/A Opal Aged Care[2019] FWCFB 1716, at [52].

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