Specialised Welding Australia Pty Ltd

[2019] FWCA 894

[2019] FWCA 894

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Specialised Welding Australia Pty Ltd
(AG2018/4799)

SWA PTY LTD ENTERPRISE AGREEMENT 2018

Manufacturing and associated industries
COMMISSIONER PLATT	ADELAIDE, 13 FEBRUARY 2019

Application for approval of the SWA Pty Ltd Enterprise Agreement 2018.

[1] An application has been made for approval of an enterprise agreement known as the SWA Pty Ltd Enterprise Agreement 2018 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act) by Specialised Welding Australia Pty Ltd. The agreement is a single enterprise agreement.

[2] The matter was allocated to my Chambers on 11 January 2019.

[3] On 17 January 2019, I conducted a telephone conference with the parties to seek clarification about aspects of the Agreement and invited the Applicant to address these matters including the provision of an undertaking.

[4] The Applicant has submitted an undertaking in the required form dated 6 February 2019. The undertaking deals with the following topics:

•  The Agreement is to be read and interpreted in conjunction with the National Employment Standards (NES). Where there is an inconsistency between this Agreement and the NES, and the NES provides a greater benefit, the NES provisions will apply to the extent of the inconsistency.

•  In relation to clause 13.1 of the Agreement, for the purpose of the additional week of annual leave as per the NES, a shift worker is a seven day shift worker who is regularly rostered to work on Sundays and public holidays.

•  In relation to clause 13.2 of the Agreement, a shift worker is entitled to 5 weeks’ annual leave.

•  Clause 13.7 of the Agreement provides that employees will receive a 10% flat loading in addition to the rates contained at 13.6 of the Agreement.

•  The definition of immediate family members for the purpose of clause 16.4(b) of the Agreement, has been varied consistent with the NES.

•  A part-time employee is entitled to paid personal/carer’s leave, unpaid carer’s leave, paid or unpaid compassionate leave and unpaid family and domestic violence leave calculated on a pro-rata basis.

•  Clause 13.8(b) of the Agreement shall not apply.

•  For the purpose of clause 7.5 of the Agreement, the ordinary rate of pay for an apprentice shall be paid a minimum of $1.50 per hour more than the current ordinary rate stated in the Manufacturing and Associated Industries and Occupations Award 2010 (the Award).

•  For the purpose of clause 7.1(c) of the Agreement, a full-time and part-time employee will be paid a minimum of $2.00 per hour on top of the minimum ordinary rate as stated in the Award.

•  Clause 12.1 and clause 12.2 of the Agreement shall not apply.

•  The reference to the Agreement title in clause 1 shall be read as “SWA PTY Ltd Enterprise Agreement 2018”.

•  The reference to the Agreement title in clause 4.2 shall be read as “Specialised Welding Australia Pty Ltd Enterprise Agreement 2012”.

•  The reference to the Agreement title in clause 5 shall be amended to be read as “This Agreement means the SWA Pty Ltd Enterprise Agreement 2018”.

•  Clause 5 of the Agreement shall not apply and clause 6.7 shall be referred to for the definition of a casual employee.

[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 representatives did not express any view on the undertaking.

[6] The undertaking appears to meet the requirements of s.190(3) of the Act and I have accepted it. As a result, the undertakings are taken to be a term of the Agreement.

[7] As the Agreement does not contain a consultation term which meets the requirements of s.205 of the Act, the model consultation term is taken to be a term of the Agreement.

[8] As the Agreement does not contain a flexibility term which meets the requirements of s.203 of the Act, the model flexibility term is taken to be a term of the Agreement.

[9] The “‘Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union’ known as the Australian Manufacturing Workers’ Union (AMWU)”, 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.

[10] 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.

[11] 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 19 February 2023.

COMMISSIONER

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