Mackay Consolidated Industries Pty Ltd

[2022] FWCA 2436

[2022] FWCA 2436

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Mackay Consolidated Industries Pty Ltd

(AG2022/1887)

Mackay Consolidated Industries Pty Ltd Union Enterprise Agreement 2021

Manufacturing and associated industries
COMMISSIONER LEE	MELBOURNE, 20 JULY 2022

Application for approval of the Mackay Consolidated Industries Pty Ltd Union Enterprise Agreement 2021

1. An application has been made for approval of an enterprise agreement known as the Mackay Consolidated Industries Pty Ltd Union Enterprise Agreement 2021 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Mackay Consolidated Industries Pty Ltd. The Agreement is a single enterprise agreement.

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. I note that the Notice of Employee Representational Rights (NERR) provided to the employees contains content that is not prescribed by the Fair Work Regulations 2009. Namely, it is on the employer’s letterhead, and contains the name/position of Ms Naylor, the Human Resources Manager. It is also dated 3 May 2022. The NERR does not therefore comply with the requirements under s.174(1A) of the Act. However, having regard to the Full Bench decision in Huntsman Chemical Company Australia Pty Ltd T/A RMAX Rigid Cellular Plastics & Others,[1] I am satisfied that this constitutes a minor procedural or technical error for the purposes of s.188(2)(a). Further, I am satisfied that the employees covered by the Agreement were not likely to have been disadvantaged by the error.

1. The United Workers’ Union and “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) being bargaining representatives for the Agreement, have each 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 organisations.

1. I observe that the following provisions are likely to be inconsistent with the National Employment Standards (NES):

·   Clause 18.1.7 – Redundancy.

·   Clause 19.1.6(b) – Termination of Employment.

·   Clause 19.2.2 – Notice of Termination by Employee.

·   Clause 34.6.2(d) – Payment for Period of Leave.

·   Clause 41.1.1 – Public Holidays.

However, noting the undertakings provided 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 27 July 2022. The nominal expiry date of the Agreement is 30 September 2024.

COMMISSIONER

Annexure A

[1] [2019] FWCFB 318.

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