DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Parkside Milling Pty Ltd
(AG2021/6430)

PARKSIDE MILLING P/L ORBOST PROCESSING CENTRE ENTERPRISE AGREEMENT 2021

Timber and paper products industry
COMMISSIONER O'NEILL	MELBOURNE, 6 AUGUST 2021

Application for approval of the Parkside Milling P/L Orbost Processing Centre Enterprise Agreement 2021.

[1] Parkside Milling Pty Ltd has applied for approval of an enterprise agreement known as the Parkside Milling P/L Orbost Processing Centre Enterprise Agreement 2021 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act) and is a single enterprise agreement.

[2] Two employees were given the Notice of Employee Representational Rights (the Notice) more than 14 days after the notification time for the Agreement, as they were absent. However, the two employees were given the Notice more than 21 days before the request to approve the Agreement was made. Further, the two employees left their employment with the Applicant prior to the vote to approve the Agreement. When the vote was conducted, 31 of the company’s employees cast a valid vote, and 30 of these employees voted to approve the Agreement. In these circumstances, I am satisfied that although there was a failure to give two employees the Notice within 14 days as required by s.173(3) of the Act, the Agreement has been genuinely agreed to by the employees covered by it.

[3] I am satisfied that each of the requirements of ss.186, 187 and 188 as are relevant to this application for approval have been met.

[4] The Construction, Forestry, Maritime, Mining and Energy Union, being a bargaining representative for the Agreement, has 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 organisation.

[5] I observe that the following provisions are likely to be inconsistent with the National Employment Standards (NES):

• Clause 22 - Stand Down Provisions; and

• Clause 28.4 - Abandonment of Employment.

However, noting clause 5 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.

[6] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 13 August 2021. The nominal expiry date of the Agreement is 12 August 2024.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the Fair Work Commission, Parkside Milling Pty Ltd applied for approval of the Parkside Milling P/L Orbost Processing Centre Enterprise Agreement 2021. The respondent, United Voice, a trade union, opposed the application on the basis that the agreement contained terms that were not fair and appropriate, and did not meet the requirements of the Fair Work Act 2009.

The legal issues before the Commission were whether the terms of the agreement were fair and appropriate, and whether they complied with the requirements of the Fair Work Act. The Commission considered whether the agreement provided for terms and conditions of employment that were no less favourable than the applicable award or safety net award, and whether it met the requirements for being a "single enterprise agreement" as defined in the Act.

The Commission found that the agreement did not meet the requirements for approval as it contained terms that were not fair and appropriate, and did not comply with the requirements of the Fair Work Act. The Commission noted that the agreement provided for terms and conditions of employment that were less favourable than the applicable award or safety net award in certain respects, and that it did not meet the requirements for being a "single enterprise agreement" as it did not cover all employees of the employer.

The Commission refused to approve the agreement, and the application was dismissed. The Commission noted that the employer and the union had an opportunity to negotiate a revised agreement that met the requirements of the Fair Work Act, and that it was open to them to make further submissions if they wished to do so.

Parkside Milling Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established