Mills Ormiston Rubber Pty Ltd

[2020] FWCA 6768

[2020] FWCA 6768

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Mills Ormiston Rubber Pty Ltd
(AG2020/3115)

MILLS ORMISTON RUBBER PTY LIMITED AUSTRALIAN MANUFACTURING WORKERS UNION & UNITED WORKERS UNION ENTERPRISE AGREEMENT 2019

Manufacturing and associated industries
DEPUTY PRESIDENT YOUNG	MELBOURNE, 15 DECEMBER 2020

Application for approval of the Mills Ormiston Rubber Pty Limited Australian Manufacturing Workers Union & United Workers Union Enterprise Agreement 2019.

[1] Mills Ormiston Rubber Pty Ltd (the Employer) has made an application for approval of an enterprise agreement known as the Mills Ormiston Rubber Pty Limited Australian Manufacturing Workers Union & United Workers Union Enterprise Agreement 2019 (the Agreement) pursuant to s 185 of the Fair Work Act 2009 (the Act). The Agreement is a single-enterprise agreement.

[2] The Notice of Employee Representational Rights was provided to employees more than 14 days after the notification time, contrary to s 173(3) of the Act. The “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) on behalf of the Employer provided submissions as to the error on 16 November 2020. I am satisfied having regard to the Full Bench decision in Huntsman Chemical Company Australia Pty Ltd T/A RMAX Rigid Cellular Plastics & Others 1(Huntsman)that this constitutes a minor technical or procedural error for the purposes s 188(2)(a) of Act. Further, I am satisfied that employees were not likely to have been disadvantaged by this error.

[3] Accordingly, notwithstanding the matters identified in paragraph 2 above, I am satisfied that the Agreement has been genuinely agreed within the meaning of s 188(2).

[4] The Employer has provided written undertakings. A copy of the undertakings is attached at Annexure A. I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement and the undertakings will not result in substantial changes to the Agreement. The undertakings are taken to be a term of the Agreement.

[5] Subject to the undertakings referred to above, and on the basis of the material contained in the application, the accompanying statutory declaration, and the additional information provided by the Employer, 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.

[6] The application was not lodged within 14 days after the Agreement was made. The Employer provided submissions on 16 November 2020 and a statutory declaration on 3 December 2020 as to the explanation for the late lodgment. On the basis of those submissions, and the statutory declaration, pursuant to s 185(3)(b) of the Act, in all the circumstances I consider it fair to extend the time for making the application to the date it was actually made.

[7] I observe that clause 17 of the Agreement is likely to be inconsistent with the National Employment Standards (NES). However, noting clause 9 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.

[8] The “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) and the United Workers’ Union, being bargaining representatives for the Agreement, have given notice under s 183 of the Act that they seek to be covered by the Agreement. In accordance with s 201(2) and based on the statutory declaration provided by the organisations, I note that the Agreement covers the organisations.

[9] The Agreement was approved on 15 December 2020 and, in accordance with s 54, will operate from 22 December 2020. The nominal expiry date of the Agreement is 30 June 2022.

DEPUTY PRESIDENT

Annexure A

 1   [2019] FWCFB 318

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