Plascorp Pty Ltd

[2024] FWCA 2780

[2024] FWCA 2780

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Plascorp Pty Ltd

(AG2024/2432)

PLASCORP PTY LTD & UNITED WORKERS UNION ENTERPRISE AGREEMENT 2024 – 2027

Manufacturing and associated industries
COMMISSIONER ALLISON	MELBOURNE, 30 JULY 2024

Application for approval of the Plascorp Pty Ltd & United Workers Union Enterprise Agreement 2024-2027

1. Plascorp Pty Ltd has made an application, under s.185 of the Fair Work Act 2009 (the Act), for approval of a single enterprise agreement known as the Plascorp Pty Ltd & United Workers Union Enterprise Agreement 2024-2027 (the Agreement).

1. The United Workers’ 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 United Workers’ Union.

1. The agreement title on the Notice of Employee Representational Rights (NERR) that was issued to the employees was the “Plascorp Pty Ltd VIC EBA” which does not match the title of the Agreement to be approved. The NERR is also not in the prescribed form required under Regulation 2.05 of the Fair Work Regulations 2009. I am satisfied that these were minor procedural or technical errors and that the employees were not likely to have been disadvantaged by them. Accordingly, I exercise the discretion conferred by s.188(5) of the Act to disregard these errors.

1. The following provisions may be inconsistent with the National Employment Standards (NES):

·  Clause 21.2, regarding the withholding of monies of termination, may allow the employer to withhold monies due to an employee on termination and act as a restriction against an employee’s entitlement to payment of NES entitlements upon termination.

·  Clause 21.7.1, relating to notice for personal/carer’s leave, may be a more stringent notice requirement than permitted by the NES, s.107(2)(a) of the Act.

Clause 31.18.3, relating to personal leave for shiftworkers, may provide fewer total days of sick leave than under s.96(1) of the Act, for shiftworkers working 11.4 or more hours per day.

·  Clause 36.4, relating to compassionate leave, does not provide an entitlement to compassionate leave in circumstances where a child is stillborn or where there is a miscarriage, inconsistent with s.104 of the Act.

·  Clause 41.5.1 appears to remove an entitlement to public holidays which is inconsistent with s.114(1) of the FW Act.

1. However, noting clause 8.2 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.

1. Clause 15.2 of the Agreement did not specify whether part-time employees working in excess of agreed hours would be entitled to overtime rates, as they would be under the Manufacturing and Associated Industries and Occupations Award 2020 (the Award). The Employer provided an undertaking to address this issue.

1. The Agreement is silent as to the rates of pay for apprentices, who are referenced in Clause 21.1.6. The Employer has provided an undertaking that apprentices will be paid above the minimum rates in the Award.

1. A copy of the undertakings is attached in Annexure A. I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement and that the undertakings will not result in substantial changes to the Agreement. The undertakings are taken to be a term of the agreement.

1. Subject to the undertakings referred to above, 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.

1. The Agreement is approved and, in accordance with s.54 of the Act, will operate from 6 August 2024. The nominal expiry date of the Agreement is 1 March 2027.

COMMISSIONER

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Annexure A