Parmalat Australia Pty Ltd

[2019] FWCA 3162

[2019] FWCA 3162

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Parmalat Australia Pty Ltd
(AG2018/6335)

PARMALAT AUSTRALIA CLARENCE GARDENS - NATIONAL UNION OF WORKERS ENTERPRISE AGREEMENT - 2018 - 2021

Manufacturing and associated industries
COMMISSIONER PLATT	ADELAIDE, 8 MAY 2019

Application for approval of the Parmalat Australia Clarence Gardens - National Union of Workers Enterprise Agreement - 2018 - 2021.

[1] An application has been made for approval of an enterprise agreement known as the Parmalat Australia Clarence Gardens - National Union of Workers Enterprise Agreement - 2018 - 2021 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act) by Parmalat Australia Pty Ltd. The agreement is a single enterprise agreement.

[2] The matter was allocated to my Chambers on 4 April 2019.

[3] On 15 April 2019, I conducted a telephone conference with the parties to seek clarification about aspects of the Agreement and invited the Applicant to address these matters including the provision of an undertaking.

[4] The Applicant has submitted an undertaking in the required form dated 7 May 2019. The undertaking deals with the following topics:

•  Clause 14 (Procedures for the Avoidance of Industrial Disputes) of the Agreement will be applied in such a manner that all employees may be represented by a person or organisation of their choice under the procedure.

•  Clause 16.1 (Probationary Employment) of the Agreement will be applied in such a manner that a probationary employee whose employment is terminated by the Applicant will receive notice or payment in lieu of notice accordance with clause 21 of the Agreement.

•  Clause 17 (Abandonment of Employment) of the Agreement will be applied in such a manner that an employee who has abandoned their employment will receive notice or payment in lieu of notice accordance with clause 21 of the Agreement.

•  Clause 21.1.6 (Termination of Employment) of the Agreement will be applied in such a manner that an apprentice whose employment is terminated by the Applicant will receive notice or payment in lieu of notice accordance with clause 21 of the Agreement.

•  Clause 36 (Annual Leave) of the Agreement will be applied in such a manner that annual leave is accrued progressively and may be taken in accordance with the National Employment Standards of the Act (NES).

•  Clause 36.12 (Seven day shift workers) of the Agreement will be applied in such a manner that a shift worker for the purposes of the NES means a seven day shift worker who is regularly rostered to work on Sundays and public holidays.

•  Clause 36.14 (Proportionate payment on termination) of the Agreement will be applied in such a manner that, if when employment ends an Employee has a period of untaken annual leave, the Applicant will pay the Employee the amount that would have been paid to the Employee had the Employee taken that period of leave in accordance with the NES.

•  Clause 38.2 (Compassionate Leave) of the Agreement will be applied in such a manner that an employee may access compassionate leave at any time permitted by the NES.

•  Clause 43.6 (Public Holidays) of the Agreement will be applied in such a manner that an employee may refuse a request to work on a public holiday on the basis of reasonable grounds in accordance with the NES.

•  Employees are entitled to at least 5 days unpaid family and domestic violence leave each year in accordance with the NES.

•  Clause 32 (Shift Work) of the Agreement will be applied in such a manner that an employee who works on an afternoon or night shift which does not continue:

(i) for at least 5 successive afternoon or night shifts of six successive afternoon or night shifts in a six day workshop (where no more than eight ordinary hours are worked each shift); or

(ii) for at least 38 ordinary hours (where more than eight ordinary hours are worked on each shift)

must be paid for each shift 50% extra for the first three hours and 100% extra for the remaining hours.

•  Clause 16.2 (Part Time Employment) of the Agreement will be applied in such a manner that a part time employee is required to agree in writing with the Applicant to flex up their ordinary hours to a maximum of 38 ordinary hours in any week. Such agreement will be contained in a written standing consent to vary the regular pattern of work in order to work additional hours at ordinary rates of pay, provided that such standing consent may be withdrawn by the Employee at any time. In the absence of such an agreement any hours worked in excess of the agreed minimum hours will be paid at the appropriate overtime rates.

[5] A copy of the undertaking has been provided to the bargaining representatives and I have sought their views in accordance with s.190(4) of the Act. The bargaining representatives that responded, did not express any view on the undertaking.

[6] The undertaking appears to meet the requirements of s.190(3) of the Act and I have accepted it. As a result, the undertakings are taken to be a term of the Agreement.

[7] As the Agreement does not contain a flexibility term which meets the requirements of s.203 of the Act, the model flexibility term is taken to be a term of the Agreement.

[8] As the Agreement does not contain a consultation term which meets the requirements of s.205 of the Act, the model consultation term is taken to be a term of the Agreement.

[9] The “National Union of Workers (NUW)”, 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) of the Act I note that the Agreement covers this organisation.

[10] I am satisfied that each of the requirements of ss.186, 187, 188 and 190 of the Act as are relevant to this application for approval have been met.

[11] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 7 days from the date of approval of the Agreement. The nominal expiry date is 30 March 2021.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

<AE503328 PR708085>