Philmac Pty Ltd

[2019] FWCA 1263

[2019] FWCA 1263

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Philmac Pty Ltd
(AG2018/7199)

PHILMAC PTY LTD PRODUCTION, DISTRIBUTION AND MAINTENANCE - SOUTH AUSTRALIA ENTERPRISE AGREEMENT 2018

Manufacturing and associated industries
COMMISSIONER PLATT	ADELAIDE, 27 FEBRUARY 2019

Application for approval of the Philmac Pty Ltd Production, Distribution and Maintenance - South Australia Enterprise Agreement 2018.

[1] An application has been made for approval of an enterprise agreement known as the Philmac Pty Ltd Production, Distribution and Maintenance - South Australia Enterprise Agreement 2018 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act) by Philmac Pty Ltd. The agreement is a single enterprise agreement.

[2] The matter was allocated to my Chambers on 6 February 2019.

[3] On 11 February 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 25 February 2019. The undertaking deals with the following topics:

•  For the purposes of clause 2.5.2 of the Agreement, the Applicant will only consider the abandonment of employment as “serious and wilful misconduct” if, on the balance of probabilities, such conduct meets the definition contained in regulation 1.0f of the Fair Work Regulations 2009.

•  The third sub clause of clause 2.5 of the Agreement, being clause 2.5.3 (incorrectly labelled as 2.5.2) will no longer apply.

•  For the purposes of clause 2.6 and clause 5.3.2 of the Agreement, where an employee undertakes training at the express written direction of the Applicant, the employee will be paid the base rate for all hours spent attending the training. Further, the cost of the training will be paid for by the Applicant.

•  In relation to clause 3.1.2 of the Agreement, prior to the commencement of the employment the Applicant and the employee will agree in writing on the hours to be worked, the days on which those hours will be work and the employees’ start and finishing times.

•  Clause 4.2.4(d) of the Agreement will now apply to all employees.

•  For the purposes of clause 5.5.1 of the Agreement, the default fund will be Colonial First State MySuper product.

•  For the purposes of clause 6.1.2(a)(i) of the Agreement, the words contained in the brackets will no longer apply.

•  In relation to clause 6.1.2(a)(ii) of the Agreement, a shift worker will be entitled to five weeks of paid annual leave consistent with the National Employment Standards (NES).

•  For the purposes of clause 6.2.1(a)(i) of the Agreement, the words contained in the brackets will no longer apply.

•  Clause 6.2.1(a)(ii) of the Agreement will no longer apply.

•  For the purposes of clause 6.3 of the Agreement, a day worker who is required to work on a public holiday will be paid for a minimum of 3 hours work at the rate of double time and a half and for every hour worked thereafter until the employee is relieved from duty.

•  Clause 6.3.2(d) of the Agreement will no longer apply.

•  For the purposes of clause 7.2.1 of the Agreement, either the Applicant or the employee may provide one weeks’ notice to terminate the employment relationship. Employees who do not meet the probationary definition are required to provide notice consistent with the NES.

•  Clause 7.2.4 of the Agreement will no longer apply.

•  For the purposes of clause 5.1.5 and clause 7.4.2 of the Agreement, a deduction from an amount payable to an employee may only occur where it is consistent with section 324 of the Act.

•  For the purposes of clause 3.3 of the Agreement, for all hours worked by apprentices (including adult apprentices) the Applicant undertakes to pay an additional 0.5% per hour for the eligible minimum rate prescribed by Appendix 1 of the Agreement.

[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, supported 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] The ““Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU)”, “United Voice” and “Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU)” 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) of the Act I note that the Agreement covers these organisations.

[9] 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.

[10] 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 31 December 2021.

COMMISSIONER

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