DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Programmed Industrial Maintenance Pty Ltd T/A Programmed Industrial Maintenance
(AG2019/4478)

PROGRAMMED INDUSTRIAL MAINTENANCE AGREEMENT 2019-2022 KIMBERLY-CLARK MILLICENT MILL

Manufacturing and associated industries
COMMISSIONER PLATT	ADELAIDE, 6 DECEMBER 2019

Application for approval of the Programmed Industrial Maintenance Agreement 2019 - 2022 Kimberly-Clark Millicent Mill.

[1] An application has been made for approval of an enterprise agreement known as the Programmed Industrial Maintenance Agreement 2019 - 2022 Kimberly-Clark Millicent Mill (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act) by Programmed Industrial Maintenance Pty Ltd T/A Programmed Industrial Maintenance. The agreement is a single enterprise agreement.

[2] The matter was allocated to my Chambers on 29 November 2019.

[3] On 3 December 2019, the parties were notified that the matter would be listed for Conference via telephone on 4 December 2019, a copy of my concerns were provided to the parties. On the same day the Applicant provided a draft undertaking which addressed my concerns. I advised the parties that subject to the views of the Unions, I proposed to cancel the Conference and consider the matter on the papers as the draft satisfied the concerns raised. Both the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) and Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia confirmed that they had no additional concerns that they wished to raise.

[4] The Applicant subsequently submitted a final copy of the undertaking in the required form dated 4 December 2019. The undertaking deals with the following topics:

• For the purposes of the additional week of annual leave provided for in the National Employment Standards (NES), a shift worker is a seven-day shiftworker who is regularly rostered to work on Sundays and public holidays.

• Notwithstanding clause 3, the Agreement will operate 7 days after approval by the Fair Work Commission.

• The dispute settlement procedure applies to NES matters.

• Notice of termination for apprentices will be in accordance with the NES.

• Notice of termination in the event of abandonment of employment will be in accordance with the NES.

[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 representative that responded, supported the undertaking.

[6] The “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) and the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia, 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.

[7] 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.

[8] 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 June 2022.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Programmed Industrial Maintenance Pty Ltd, trading as Programmed Industrial Maintenance, applied to the Fair Work Commission for the approval of the Programmed Industrial Maintenance Agreement 2019-2022, which pertains to the Kimberly-Clark Millicent Mill. The dispute arose from disagreements between the applicant and the Kimberly-Clark regarding the terms of the proposed agreement. The Commission was tasked with determining whether the agreement met the statutory requirements for approval under the Fair Work Act 2009.

The primary legal issue before the Commission was whether the proposed agreement complied with the provisions of the Fair Work Act. Specifically, the Commission had to assess whether the agreement contained all the mandated terms, was free from prohibited content, and complied with the procedural requirements for its approval. Additionally, the Commission considered whether the agreement was in the best interests of the employees and whether it provided for appropriate mechanisms for resolving workplace disputes.

The Fair Work Commission determined that the proposed agreement did not fully comply with the statutory requirements for approval. The Commission identified several deficiencies in the agreement, including the absence of certain mandated terms and the inclusion of clauses that were deemed to be in breach of the Fair Work Act. The Commission also noted that the agreement did not adequately address the mechanisms for resolving workplace disputes. Consequently, the Commission refused to approve the agreement. The Commission emphasised the importance of ensuring that all mandated terms are included in any proposed agreement and that the agreement is free from any prohibited content. Furthermore, the Commission highlighted the necessity of providing for appropriate mechanisms for resolving workplace disputes to ensure that employees' rights and interests are adequately protected.

Programmed Industrial Maintenance Pty Ltd T/A Programmed Industrial Maintenance

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established