Portland Pine Products Pty Ltd T/A Portland Pine Products

[2024] FWCA 1514

[2024] FWCA 1514

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

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

Portland Pine Products Pty Ltd T/A Portland Pine Products

(AG2024/1162)

PORTLAND PINE PRODUCTS PTY LTD ENTERPRISE AGREEMENT 2024-2027

Manufacturing and associated industries
COMMISSIONER CONNOLLY	MELBOURNE, 24 APRIL 2024

Application for approval of the Portland Pine Products Pty Ltd Enterprise Agreement – 2024 to 2027

1. An application has been made for approval of an enterprise agreement known as the Portland Pine Products Pty Ltd Enterprise Agreement – 2024 to 2027 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act) by Portland Pine Products Pty Ltd T/A Portland Pine Products (the Applicant). The Agreement is a single enterprise agreement.

1. The matter was allocated to my Chambers on 16 April 2024.

1. The notification time for the Agreement under s.173(2) was 12 October 2023 and the Agreement was made on 27 March 2024.  Accordingly, the genuine agreement requirements the Agreement is to be assessed under are those applying after 6 June 2023 and the better off overall test (BOOT) is that applying on and from 6 June 2023. [1] 

1. On 17 April 2024, the Employer was invited to address aspects of the Agreement through submissions.

1. There are three National Employment Standards (NES) issues that require comment:

·   Compassionate leave: Clause 8.5 provides for compassionate leave, however, it is silent is relation to the entitlement to when the employee, their spouse, or de facto partner has a miscarriage or gives birth to a stillborn child. This may be inconsistent with s 104(1)(c) of the Act.

·   Abandonment: Clause 8.17 of the Agreement provides an abandonment clause. This clause does not specifically provide that employees deemed to have abandoned their employment in accordance with this clause will be afforded their minimum notice of termination entitlement as per s.117(3) of the Act. We note that s.123 of the Act does not preclude an employee who has abandoned their employment from the entitlement to notice of termination provided by s.117 of the Act.

·   Substitution of Public Holiday: Clause 15 of the Agreement provides that changing public holidays can occur where agreement has been reached with majority of employees. This appears to be inconsistent with s.115(3) of the Act, which provides that the substitution of a public holiday with another day may only occur by agreement between the employer and an individual employee, rather than a majority of employees.

1. Clause 7 of the Agreement acts as an effective NES precedence clause, in that it states that “If, at any time, the conditions set out in this Agreement, including the incorporated Award, are less favourable than those in the National Employment Standard (NES), in any particular respect, the conditions in the NES will apply to the exclusion of this Agreement in the particular respect in which they are more favourable”. As a result of the NES precedence clause, the above clause(s) will not apply to the extent that they are inconsistent with the NES.

1. The “Construction, Forestry and Maritime Employees 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) of the Act I note that the Agreement covers this organisation.

1. I am satisfied that each of the requirements of ss.186, 187, 188, 190, 193 and 193A of the Act 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 7 days after the date of approval of the Agreement. The nominal expiry date is 31 December 2027.

COMMISSIONER

[1] The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) made a number of changes to enterprise agreement approval processes in Part 2-4 of the Fair Work Act. Those changes broadly commenced operation on 6 June 2023, subject to various transitional arrangements that included those to effect described above.

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