Lettela Pty Ltd T/A Elastomers Australia

[2022] FWCA 1365

[2022] FWCA 1365

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Lettela Pty Ltd T/A Elastomers Australia

(AG2022/996)

Elastomers Australia Employee Enterprise Agreement 2022

Manufacturing and associated industries
COMMISSIONER O'NEILL	MELBOURNE, 21 APRIL 2022

Application for the approval of Elastomers Australia Employee Enterprise Agreement 2022

1. Elastomers Australia has applied for approval of an enterprise agreement known as the Elastomers Australia Employee Enterprise Agreement 2022 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act) and is a single enterprise agreement.

1. The Notice of Employee Representational Rights (NERR) distributed to employees appears to contain a ‘communication date’ in the bottom right corner. However, I am satisfied that the Agreement would have been genuinely agreed to but for the minor procedural departure from the prescribed form requirements of the NERR under s.174(1A) of the Act and that the employees covered by the Agreement were not likely to have been disadvantaged by this. Accordingly, I exercise the discretion conferred by s.188(2) of the Act.

1. 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.

1. 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.

1. 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.

1. The “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) 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. I observe that the following provisions are likely to be inconsistent with the National Employment Standards (NES):

·           Clause 8.1 – Annual Leave;

·           Clause 8.4.1 – Compassionate Leave;

·           Clause 10.1.7 – Redundancy/Severance;

·           Clause 11.2 – Abandonment of Employment; and

·           Clause 11.5.1 – Summary Dismissal.

However, noting the undertakings given 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.

1. The Agreement is approved and, in accordance with s.54 of the Act, will operate from 28 April 2022. The nominal expiry date of the Agreement is 20 April 2025.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

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Annexure A