Sealed Air Australia Pty Ltd

[2024] FWCA 145

[2024] FWCA 145

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

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

Sealed Air Australia Pty Ltd

(AG2023/5210)

SEALED AIR AUSTRALIA PTY LTD (TULLAMARINE) &

United Workers Union Enterprise Agreement 2023.

Manufacturing and associated industries
COMMISSIONER CONNOLLY	MELBOURNE, 12 JANUARY 2024

Application for approval of the Sealed Air Australia Pty Ltd (Tullamarine) & United Workers Union Enterprise Agreement 2023

1. An application has been made for approval of an enterprise agreement known as the Sealed Air Australia Pty Ltd (Tullamarine) & United Workers Union Enterprise Agreement 2023 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act) by Sealed Air Australia Pty Ltd (the Applicant). The Agreement is a single enterprise agreement.

1. The matter was allocated to my Chambers on 22 December 2023.

1. The notification time for the Agreement under s.173(2) was 8 March 2023 and the Agreement was made on 13 December 2023.  Accordingly, the genuine agreement requirements the Agreement is to be assessed under are those applying before 6 June 2023 and the better off overall test (BOOT) is that applying on and from 6 June 2023. [1] 

1. On 3 January 2024, the Employer was invited to address aspects of the Agreement including through the provision of an undertaking.

1. There are National Employment Standards (NES) issues that require comment, and although they have been addressed in the undertaking below, I have outlined them as follows:

·   Hours of work: Clause 31.5.1 of the Agreement provides that a 12-hour shift worker works an average of 42 ordinary hours per week. This appears to be inconsistent with ss.62-64 of the Act.

·   Withholding of NES entitlements: The following clauses may restrict an employee’s entitlement to payment of NES entitlements upon termination of employment:

oClause 21.2.2 of the Agreement provides that if an employee fails to give notice the employer shall have the right to withhold moneys due to the employee with a maximum amount equal to the ordinary time rate of pay for the period of notice.

oClause 36.10.2 of the Agreement provides that the Company may deduct from whatever remuneration is owed to the employee on termination an amount equal to the annual leave taken in advance to which an entitlement has not been accrued.

·   Notice of termination: Clause 21.1.6 of the Agreement provides that an employee is not entitled to notice of termination where employment is terminated as a consequence of malingering, inefficiency, or neglect of duty. This may raise an inconsistency with s.123(1)(b) of the Act and reg 1.07 of the FW Regulations.

·   Redundancy: Clause 20.5.1 of the Agreement provides that an employee is not entitled to redundancy pay where employment is terminated as a consequence of malingering, inefficiency, or neglect of duty. This may raise an inconsistency with s.123(1)(b) of the Act and reg 1.07 of the FW Regulations.

1. Clause 9.4 of the Agreement acts as an effective NES precedence clause, in that it states that “[t]his Agreement shall be read and interpreted in conjunction with the National Employment Standards (NES) provided that where there is any inconsistency between this Agreement and the NES, the more beneficial provision to an Employee shall take precedence”. As a result of the NES precedence clause, the above clauses will not apply to the extent that they are inconsistent with the NES.

1. The Applicant has provided written undertakings, dated 8 January 2024, and a copy is attached in Annexure A. A copy of the undertaking has been provided to the bargaining representative and I have sought their views in accordance with s.190(4) of the Act. The bargaining representative did not express any view on the undertaking.

1. I am satisfied that the undertaking will not cause financial detriment to any employee covered by the Agreement and that the undertaking will not result in substantial changes to the Agreement, thus appears to meet the requirements of s.190(3). The undertaking is taken to be a term of 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) 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 30 June 2026.

COMMISSIONER

Annexure A

[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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