Lotus Folding Walls & Doors Pty Ltd
[2024] FWCA 3581
•14 OCTOBER 2024
| [2024] FWCA 3581 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.185—Enterprise agreement
Lotus Folding Walls & Doors Pty Ltd
(AG2024/3602)
| Manufacturing and associated industries | |
| COMMISSIONER REDFORD | MELBOURNE, 14 OCTOBER 2024 |
Application for approval of the Lotus Folding Walls & Doors Pty Ltd Enterprise Agreement 2024
An application has been made for approval of an enterprise agreement known as the Lotus Folding Walls & Doors 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 Lotus Folding Walls & Doors Pty Ltd. The Agreement is a single enterprise agreement.
The Notice of Employee Representational Rights (NERR) distributed to employees on 7 May 2024 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.
The Employer has provided written undertakings. A copy of 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. The undertakings are taken to be a term of the agreement.
Noting clause 7.1 of the Agreement (the NES precedence clause), I am satisfied that to the extent the Agreement is less favourable than the National Employment Standards (NES), the more beneficial entitlements of the NES in the Act will prevail where there is an inconsistency between the agreement and the NES:
(a)Clause 5.13 of the Agreement, which deals with public holidays, does not expressly provide for an entitlement for employees to be absent from work on a public holiday, within the meaning of s 114(1) of the Act. On the basis of the NES precedence undertaking, the superior entitlement provided for in the NES will apply.
(b)Clause 15.11 of the Agreement provides for casual conversion. The provisions do not appear to be consistent with s.66B of the Act. However, when read in conjunction with the NES precedence clause (clause 8(a)) will have no effect to the extent of any inconsistency.
(c)Clause 31.13 of the Agreement does not provide for paid family and domestic violence leave, as is provided for in s 106BA of the Act. On the basis of the NES precedence undertaking, the superior entitlement provided for in the NES will apply.
Clause 13.7 of the Agreement contains a reference to clause 14.1.1. It is obvious that this reference should read clause 13.1 and is a typographical error. Pursuant to s 218A of the Act the reference to clause 14.1.1 in clause 13.7 of the Agreement is varied to read 13.1 to correct this obvious error.
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 Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (AMWU), a bargaining representative for the Agreement, supports the approval of the Agreement and has given notice under s 183 of the Act that it wants to the Agreement to cover it. In accordance with s 201(2) of the Act I note that the Agreement covers the AMWU.
The Agreement is approved and, in accordance with s.54 of the Act, will operate from 21 October 2024. The nominal expiry date of the Agreement is 30 June 2027.
COMMISSIONER
Printed by authority of the Commonwealth Government Printer
<AE526378 PR780171>
ANNEXURE A
0
0
0