Nci Holdings Pty Ltd Trading AS Nci Packaging

[2025] FWCA 2885

[2025] FWCA 2885

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185 - Application for approval of a single-enterprise agreement

Nci Holdings Pty Ltd Trading AS Nci Packaging

(AG2025/2680)

PACMETAL SERVICES GLENDENNING ENTERPRISE AGREEMENT 2025

Manufacturing and associated industries
COMMISSIONER WALKADEN	SYDNEY, 28 AUGUST 2025

Application for approval of the Pacmetal Services Glendenning Enterprise Agreement 2025

1. This decision concerns an application for approval of the Pacmetal Services Glendenning Enterprise Agreement 2025 (the Agreement). The application has been made under section 185 of the Fair Work Act 2009 (the FW Act) by NCI Holdings Pty Ltd t/as NCI Packaging (the Applicant). The Agreement is a single enterprise agreement. The Fair Work Commission must approve the Agreement if the requirements in sections 186 and 187 of the FW Act are met.

1. If the agreement is not a greenfields agreement, section 186(2)(a) of the FW Act requires the Fair Work Commission to be satisfied that the agreement has been genuinely agreed to by the employees covered by the agreement. The Agreement is not a greenfields agreement. The question of whether an enterprise agreement has been genuinely agreed to by the employees is determined by reference to section 188 of the FW Act. Section 188(4)(a) of the FW Act provides that the Fair Work Commission cannot be satisfied as to genuine agreement unless the Fair Work Commission is satisfied that sections 173 and 174 of the FW Act have been complied with. In considering the application, I raised a concern with the Applicant and the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU), and another bargaining representative concerning compliance with sections 173 and 174 of the FW Act. The concern being the version of the Notice of Employee Representational Rights (NERR) issued to the employees explained that the proposed agreement would cover employees that are employed to perform work described in classification levels C13 – C6. The Agreement covers employees that are employed to perform work described in classification levels C13 – C9 (and apprentices and trainees). I sought the views of the Applicant, the AMWU and the other bargaining representative whether any such error in the NERR could be disregarded in accordance with section 188(5) of the FW Act. The Applicant submitted that all positions are currently within C13 – C9. The Applicant did not express any other view. The AMWU and the other bargaining representative did not express any view. I am satisfied that the reference to C13 – C6 in the NERR is a minor error that can be disregarded in accordance with section 188(5) of the FW Act. In particular, I am satisfied that the employees were not likely to have been disadvantaged by that error.

1. Section 186(2)(c) of the FW Act requires the Fair Work Commission to be satisfied that the terms of the Agreement do not contravene section 55 of the FW Act. In considering the application, I raised two concerns with the Applicant, the AMWU and the other bargaining representative. The first concern was in relation to clause 12 of the Agreement, which deals with casual conversion. Under clause 12, a casual employee has four weeks in which to provide notice to convert to permanent employment and the Applicant must provide a response within four weeks. This may be inconsistent with section 66A of the FW Act. The second concern was in relation to clause 30 of the Agreement, which concerns compassionate leave. Clause 30 does not appear to permit the taking of compassionate leave in cases of stillbirth or miscarriage. This appears inconsistent with section 104 of the FW Act. I sought confirmation as to whether the Applicant intended to rely upon clause 5 of the Agreement, which can be best described as a NES precedence clause, to resolve any such concern or propose an undertaking. The Applicant confirmed that it intends to rely upon clause 5 of the Agreement. Based upon that confirmation from the Applicant, the requirement in section 186(2)(c) is satisfied.

1. Section 186(2)(d) of the FW Act requires the Fair Work Commission to be satisfied that the Agreement passes the better off overall test (BOOT). The assessment as to whether the Agreement passes the BOOT is applied in accordance with section 193A of the FW Act. In considering the application, I raised a concern with the Applicant, the AMWU and the other bargaining representative concerning trainees. The Agreement covers employees classified from C13 – C9, Apprentices and Trainees. The Agreement provides a wage rate for employee classified from C13 – C9 at Appendix 1, and Apprentices at clause 18. The Agreement does not provide wage rates for Trainees. That gives rise to a concern that the Agreement does not pass the BOOT. The Applicant proposed an undertaking to meet this concern. The Commission sought the views of the AMWU and the other bargaining representative as to the undertaking. The AMWU and the other bargaining representative did not express a view. I accept the undertaking. In particular, I am satisfied that that the undertaking is not likely to cause financial detriment to any employee covered by the Agreement or result in substantial changes to the Agreement. I am satisfied of those matters because the effect of the undertaking is that Trainees will be paid a wage rate that is greater than the wage rate they would otherwise receive under the relevant modern award. A copy of the undertaking is attached at Annexure A of this decision.

1. Based on the material provided by the Applicant and the AMWU, each of the other requirements of the FW Act that are relevant to this Agreement are satisfied.

1. Section 201 of the FW Act requires the approval decision to note certain matters. The first such matter that is relevant to this application is section 201(2) of the FW Act. The “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU), which was a bargaining representative for the Agreement, has given the Fair Work Commission a notice under section 183(1) of the FW Act that it wants the Agreement to cover it. In accordance with section 201(2) of the FW Act, I note that the Agreement covers the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU). The second such matter that is relevant to this application is section 201(3) of the FW Act. I note that the Agreement is approved with the attached undertaking, which is taken to be a term of the Agreement.

1. The Agreement is approved and, in accordance with section 54 of the FW Act, it will operate from 4 September 2025. The nominal expiry date of the Agreement is 31 July 2028.

COMMISSIONER

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Annexure A