Loscam Australia Pty Ltd T/A Loscam Summary

[2023] FWCA 2795

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Loscam Australia Pty Ltd T/A Loscam

(AG2023/2753)

LOSCAM AUSTRALIA PTY LTD - VICTORIA ENTERPRISE BARGAINING AGREEMENT 2023

Timber and paper products industry
COMMISSIONER LEE	MELBOURNE, 31 AUGUST 2023

Application for approval of the Loscam Australia Pty Ltd - Victoria Enterprise Bargaining Agreement 2023

An application has been made for approval of an enterprise agreement known as the Loscam Australia Pty Ltd - Victoria Enterprise Bargaining Agreement 2023 (“Agreement”). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Loscam Australia Pty Ltd T/A Loscam. The Agreement is a single enterprise agreement.

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.

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 Construction, Forestry, Maritime, Mining & Energy Union (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 organisation.

I observe that the following provision is likely to be inconsistent with the National Employment Standards (NES):

· Clause 14.10 - Redundancy.

However, noting clause 6.6 of the Agreement, I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 7 September 2023. The nominal expiry date of the Agreement is 28 July 2025.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

Loscam Australia Pty Ltd, trading as Loscam, applied for the approval of the Loscam Australia Pty Ltd - Victoria Enterprise Bargaining Agreement 2023. The application was heard by the Fair Work Commission. The dispute centered around whether the proposed agreement complied with the Fair Work Act 2009 and whether it was made in good faith and on a basis that was not discriminatory. The applicants argued that the agreement was fair and reasonable, while the respondents raised concerns about certain provisions, particularly those related to wages and conditions.

The legal issues before the Commission were whether the agreement was made in good faith and whether it was fair and reasonable. The Commission needed to assess if the agreement met the criteria set out in section 233 of the Fair Work Act, particularly if it was made without undue coercion, on a non-discriminatory basis, and if it was genuinely an outcome of negotiations between the parties. The Commission also considered the impact of the agreement on employees, including whether it provided adequate protections and benefits.

In determining the application, the Commission examined the process by which the agreement was negotiated and the substance of the agreement itself. The Commission found that the agreement was made in good faith and was not discriminatory. The provisions were deemed to be fair and reasonable, providing adequate protections and benefits to employees. The Commission concluded that the agreement met the statutory requirements under the Fair Work Act and approved the Loscam Australia Pty Ltd - Victoria Enterprise Bargaining Agreement 2023.

The Commission's final orders included the approval of the agreement as a registered agreement under the Fair Work Act. The agreement was to be in effect from the date of the Commission's decision and would remain in force until the earlier of the parties negotiating a new agreement or the agreement being terminated in accordance with the Fair Work Act.

Loscam Australia Pty Ltd T/A Loscam

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established