Laminex Group Pty Ltd

[2021] FWCA 1358

[2021] FWCA 1358

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Laminex Group Pty Ltd
(AG2021/3920)

LAMINEX PTY. LTD. CHELTENHAM PLANT PRODUCTION ENTERPRISE AGREEMENT 2020

Timber and paper products industry
DEPUTY PRESIDENT YOUNG	MELBOURNE, 23 MARCH 2021

Application for approval of the Laminex Pty. Ltd. Cheltenham Plant Production Enterprise Agreement 2020.

[1] Laminex Group Pty Ltd (the Employer) has made an application for approval of an enterprise agreement known as the Laminex Pty. Ltd. Cheltenham Plant Production Enterprise Agreement 2020 (the Agreement) pursuant to s 185 of the Fair Work Act 2009 (the Act). The Agreement is a single-enterprise agreement.

[2] A number of concerns were raised by the Commission in relation to the Agreement. A Mention was held in relation to those matters on 16 March 2021.

[3] At lodgment, the Agreement at clause 4 provided that the legal name of the Employer was Laminex Pty Limited. The Employer provided submissions on 19 March 2021 that the correct name of the Employer is Laminex Group Pty Ltd and that the error at clause 4 was due to a clerical error. The Employer sought that pursuant to s 586 of the Act the name of the Employer in clause 4 be amended to reflect the correct legal name. An amended Agreement was provided by the Employer on 19 March 2021. In the circumstances, I am satisfied that the amendment should be allowed and that it is appropriate to do so pursuant to s 586 of the Act.

[4] The Notice of Representational Rights (NERR) issued to employees stated that the legal name of the Employer is Laminex Group Pty Limited T/A Laminex, whereas it should have been Laminex Group Pty Ltd. The Employer made submissions with respect to this error, and I am satisfied having regard to those submissions and the Full Bench decision in Huntsman Chemical Company Australia Pty Ltd T/A RMAX Rigid Cellular Plastics & Others 1 (Huntsman)that this constitutes a minor technical or procedural error for the purposes s 188(2)(a) of Act. Further, I am satisfied that employees were not likely to have been disadvantaged by this error.

[5] Accordingly, notwithstanding the matters identified in paragraph 4 above, I am satisfied that the Agreement has been genuinely agreed within the meaning of s 188(2).

[6] The Employer has provided written undertakings. A copy of the undertakings is attached at Annexure A. I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement and the undertakings will not result in substantial changes to the Agreement. The undertakings are taken to be a term of the Agreement.

[7] Subject to the undertakings referred to above, and on the basis of the material contained in the application, and the accompanying statutory declaration and the additional information provided by the Employer and having heard from the parties, 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.

[8] Pursuant to s 202(4) of the Act, the model flexibility term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.

[9] I observe that Parts 2.7, 5.2.2(b), 5.2.3, 5.2.7(b)-(c), 5.2A.1(a)-(c), 5.4.1(a), 5.5.1(e), 5.5.3, 5.1.6(b), 2.2.3(b)(i) and 5.1.11 of the Agreement are likely to be inconsistent with the National Employment Standards (NES). However, noting the Undertaking provided, I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

[10] The Construction, Forestry, Maritime, Mining and Energy Union, being a bargaining representative for the Agreement, has given notice under s 183 of the Act that it seeks to be covered by the Agreement. In accordance with s 201(2) and based on the statutory declaration provided by the organisation, I note that the Agreement covers the organisation.

[11] The Agreement was approved on 23 March 2021 and, in accordance with s 54, will operate from 30 March 2021. The nominal expiry date of the Agreement is 30 April 2023.

DEPUTY PRESIDENT

Annexure A

 1   [2019] FWCFB 318

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