Sealed Air Australia Pty Ltd T/A Sealed Air Australia

[2022] FWCA 1986

[2022] FWCA 1986

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Sealed Air Australia Pty Ltd T/A Sealed Air Australia

(AG2022/1589)

Sealed Air Australia Pty Ltd (Tullamarine) & United Workers Union Enterprise Agreement –2021-2023

Manufacturing and associated industries
DEPUTY PRESIDENT MILLHOUSE	MELBOURNE, 17 JUNE 2022

Application for approval of the Sealed Air Australia Pty Ltd (Tullamarine) & United Workers Union Enterprise Agreement –2021 -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 - 2021 - 2023 (Agreement). The application was made pursuant to s 185 of the Fair Work Act 2009 (Cth) (Act). It has been made by Sealed Air Australia Pty Ltd T/A Sealed Air Australia (Employer). The Agreement is a single enterprise agreement.

1. The Employer has provided written undertakings. 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, and the material before the Commission, 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. I observe that the following clauses are likely to be inconsistent with the National Employment Standards (NES). However, noting clause 5.3 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:

·   Clause 31.5.1 provides that a 12-hour shift worker works an average of 42 ordinary hours per week.

·   Clauses 31.4 and 40.1 do not specify that an employee may refuse to work a public holiday where the request by the employer is unreasonable or the refusal is reasonable.

·   Clause 17 appears to remove an employee’s entitlement to notice of termination contrary to the NES.

·   Clause 21.1.5 provides that in calculating any payment in lieu of notice, the wages an employee would have received in respect of the ordinary time he/she would have worked during the period of notice had his/her employment not been terminated shall be used.

·   Clause 21.1.6 excludes apprentices from notice of termination.

·   Clause 20.3 provides that an employee is not entitled to redundancy pay where the employee rejects an offer of employment with a transferee in which the terms and conditions are no less favourable, considered on an overall basis, than the terms and conditions applicable to the employee at the time of ceasing employment with the transferor, but does not specify that the terms and conditions must also be substantially similar to the employee's terms and conditions of employment with the first employer immediately before the termination.

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 organisation.

1. The Agreement is approved and, in accordance with s 54 of the Act, will operate from 24 June 2022. The nominal expiry date of the Agreement is 30 June 2023.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

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Annexure A