Loscam Australia Pty Ltd T/A Loscam Australia

[2024] FWCA 637

[2024] FWCA 637

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Loscam Australia Pty Ltd T/A Loscam Australia

(AG2024/243)

LOSCAM AUSTRALIA PTY LIMITED – WINGFIELD SA ENTERPRISE AGREEMENT 2024

Timber and paper products industry
COMMISSIONER TRAN	MELBOURNE, 16 FEBRUARY 2024

Application for approval of the Loscam Australia Pty Limited – Wingfield SA Enterprise Agreement 2024

1. Loscam Australia Pty Ltd T/A Loscam Australia has applied for approval of an enterprise agreement known as the Loscam Australia Pty Limited – Wingfield SA Enterprise Agreement 2024 (the Agreement) under s 185 of the Fair Work Act 2009 (the Act).

1. The Agreement is a single enterprise agreement.

1. The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) (Amending Act) made changes to enterprise agreement approval processes in Part 2-4 of the Act. The changes commenced operation on 6 June 2023.

1. The notification time for the Agreement under s 173(2) was 22 September 2023 and the Agreement was made on 29 January 2024. So, both the genuine agreement and the better off overall test requirements are those applying on and from 6 June 2023.

1. The Employer issued an earlier version of the Notice of Employee Representational Rights and therefore did not comply with s 174(1A). Aside from use of the earlier version of the Notice, there were no substantive differences. I have previously detailed the differences between the pre-6 June 2023 and post-6 June 2023 Notice in Application by AJS Electrical Contracting Pty Ltd T/A AJS Electrical Contracting.[1] I consider the use of the earlier Notice is a minor technical error.

1. I am satisfied with the Employer’s responses to my concerns regarding the use of the earlier Notice and I disregard the error in accordance with s 188(5) of the Act as I am also satisfied that employees were not disadvantaged by the error.

1. I note that the following clauses may be inconsistent with the National Employment Standards:

-     Clause 10 – Compassionate Leave does not contain all the grounds available for compassionate leave under s 104; and

-     Clauses 13.9(g) – Redundancy does not provide that redundancy entitlements are at times subject to the FWC in accordance with s 120.

1. As the Agreement contains a National Employment Standards precedence clause at Clause 4.2(b) and (c), I am satisfied that the more beneficial entitlements of the NES will prevail.

1. Subject to the matters referred to above, I am satisfied that each of the requirements of ss 186, 187 and 188 as are relevant to this application for approval have been met.

1. The Agreement is approved and, in accordance with s 54 of the Act, will operate from 23 February 2024.

1. The nominal expiry date of the Agreement is 23 February 2024.

COMMISSIONER

[1] [2023] FWC 3343 at [34].

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