Manildra Energy Australia Pty Ltd

[2013] FWCA 1169

[2013] FWCA 1169

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement

Manildra Energy Australia Pty Ltd
(AG2013/37)

MANILDRA BOMADERRY SITE AGREEMENT 2012

Manufacturing and associated industries
COMMISSIONER BULL	SYDNEY, 20 FEBRUARY 2013

Application for approval of the Manildra Bomaderry Site Agreement 2012.

[1] An application has been made for approval of an enterprise agreement known as the Manildra Bomaderry Site Agreement 2012 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single-enterprise agreement.

Flexibility term

[2] Section 202(1) of the Act provides that an enterprise agreement must contain a flexibility term enabling an employee and employer to vary the effect of the agreement in order to meet the genuine needs of the employee and employer. Clause 9 - Individual Flexibility Arrangement, and in particular subclause 9.1 of the Agreement provides that an individual flexibility arrangement may deal with the taking of annual leave in single days of up to five days per annum.

[3] Following correspondence from the "Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU) as a bargaining representative and the employer, the Commission convened a conference to address how the ability for the employer and employee to agree in writing of up to five single days annual leave provided additional flexibility from that contained in the National Employment Standards (NES) which allows an employee to request to take an unlimited number of single days which may not be unreasonably refused by the employer (s.88 of the Act). The NES provisions cannot be excluded from enterprise agreements (s.55 of the Act).

[4] Despite the NES providing (without the necessity of a written agreement) the ability of the employer and its employees to take more than five days annual leave as single day absences, the employer has confirmed in writing that the reference to a written agreement regarding five single day absences provides additional flexibility.

[5] I am satisfied that each of the requirements of s.186, including the requirement that the group of employees covered by the Agreement has been fairly chosen, and ss.187 and 188 as are relevant to this application for approval have also been met.

[6] The Australian Workers’ Union, the "Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU), the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) and The Australian Workers’ Union (AWU) being bargaining representatives for the Agreement, have given notice under s.183 of the Act that they want the Agreement to cover them. In accordance with s.201(2) I note that the Agreement covers these organisations.

[7] The Agreement is approved. In accordance with s.54(1) the Agreement will operate from 27 February 2013. The nominal expiry date of the Agreement is 31 January 2015.

COMMISSIONER

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