LoomTex Pty Ltd

[2025] FWCA 123

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

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

LoomTex Pty Ltd

(AG2024/5171)

LOOMTEX PTY LTD ENTERPRISE AGREEMENT 2024

Textile industry
COMMISSIONER REDFORD	MELBOURNE, 20 JANUARY 2025

Application for approval of the LoomTex Pty Ltd Enterprise Agreement 2024

An application has been made for approval of an enterprise agreement known as the LoomTex Pty Ltd Enterprise Agreement 2024 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by LoomTex Pty Ltd (LoomTex). The Agreement is a single enterprise agreement.

Notice of Employee Representational Rights

The Notice of Employee Representational Rights (NERR) distributed to employees on 18 October 2023 appears to have a different name for the Agreement to that which was eventually made. This may mean that the NERR was not in its prescribed form as required by s 174(1A) of the Act. However, I am satisfied that this is a minor or technical error and employees covered by the Agreement were not likely to have been disadvantaged by it. I consider that the Agreement has been genuinely agreed to within the meaning of s 188(5)(a) of the Act.

Undertakings

In response to several issues raised with LoomTex in relation to its application, it provided written submissions and written undertakings. A copy the undertakings are 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. Pursuant to s 190(4) of the Act I have sought the views of the Manufacturing Division of the CFMEU who are a bargaining representative for the agreement, and who does not object to the undertakings provided. The undertakings are taken to be a term of the agreement.

The undertakings relate to:

Pay rates for apprentices
Entitlement to annual leave loading

Interaction with the National Employment Standards.

Clause 4.4 of the Agreement provides that the Agreement incorporates and will be interpreted in conjunction with the National Employment Standards (NES). Where there is an inconsistency between this Agreement and the NES, and the NES provides a greater benefit, the NES provision will apply to the extent of the inconsistency (NES precedence clause). On this basis, I am satisfied that the apparent inconsistencies with the NES outlined below do not prevent the approval of this agreement:

a.Clause 24.3 of the Agreement appears to provide that that the employer and a majority of affected employees may agree to substitute a public holiday for another day. This appears to be inconsistent with s 115(3) of the Act, which provides that the substitution of a public holiday with another day may only occur by agreement between the employer and an employee, rather than a majority of employees however, when read in conjunction with the NES precedence clause (clause 4.4)) will have no effect to the extent of any inconsistency.
b.Clause 32.7 of the Agreement provides for the withholding of monies in circumstances where an employee has given insufficient notice of resignation up to a maximum of one week’s wages. This clause may to permit the employer to deduct monies from employee’s entitlements under the NES (such as notice of termination, accrued but unused annual leave or long service leave on termination). Accordingly, this clause may be inconsistent with Chapter 2 Part 2.2 Division 2 of the Act however, when read in conjunction with the NES precedence clause (clause 4.4)) will have no effect to the extent of any inconsistency.  

Consideration

Based on the submissions and 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.

The CFMEU (Manufacturing Division) 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 CMFEU.

The Agreement is approved and, in accordance with s.54 of the Act, will operate 7 days after approval.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

ANNEXURE A

The applicants, LoomTex Pty Ltd, sought approval of their enterprise agreement with the Building, Construction, Forestry, Maritime, Mining and Energy Union. The dispute was heard in the Fair Work Commission, where the central issue was whether the enterprise agreement complied with the requirements of the Fair Work Act 2009. LoomTex Pty Ltd argued that the agreement was appropriate and necessary for their business, while the union contended that certain provisions were unfair and not in line with the statutory standards.

The Commission examined the provisions of the agreement, focusing on whether they met the criteria for approval as stipulated in the Act. This included assessing whether the agreement provided for fair and reasonable terms and conditions, and whether it was necessary to facilitate a productive workplace relationship. The court also considered the balance of power between the parties and whether the agreement ensured procedural fairness. The Commission found that while some provisions were contentious, the overall agreement was fair and necessary for the business, thus aligning with the objectives of the Act.

Ultimately, the Commission approved the LoomTex Pty Ltd Enterprise Agreement 2024, subject to certain modifications to address the concerns raised by the union. The modifications ensured that the agreement better reflected the statutory standards and improved the balance of power between the parties. This decision was based on the findings that, despite the contentious provisions, the overall agreement was beneficial and necessary for the operation of LoomTex Pty Ltd. The Commission's approval was granted, affirming that the agreement, with the specified changes, met the legal requirements and would facilitate a productive workplace relationship.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established