Spicers Australia Pty Ltd Trading AS Spicers

[2025] FWCA 855

[2025] FWCA 855

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

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

Spicers Australia Pty Ltd Trading AS Spicers

(AG2025/555)

SPICERS AUSTRALIA PTY LTD (DANDENONG SOUTH) ENTERPRISE AGREEMENT 2024

Timber and paper products industry
COMMISSIONER REDFORD	MELBOURNE, 11 MARCH 2025

Application for approval of the Spicers Australia Pty Ltd (Dandenong South) Enterprise Agreement 2024

1. An application has been made for approval of an enterprise agreement known as the Spicers Australia Pty Ltd (Dandenong South) Enterprise Agreement 2024 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Spicers Australia Pty Ltd (Spicers). The Agreement is a single enterprise agreement.

Late Application 

1. Section 185(3)(a) of the Act provides that an application for approval of an agreement must be made no later than 14 days after the agreement being made. The Agreement was made on 17 February 2025 and lodged on 5 March 2025, and was therefore 2 days late. I have considered the explanation provided for the late lodgement and am satisfied in all the circumstances that it is fair to extend the period to the date on which the application was lodged

Undertakings

1. In response to several issues raised with Spicers in relation to its application, it has provided written undertakings, a copy of which are 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. The undertakings relate to:  

a.Application of the Award

b.Part time employment

c.Definition of a shiftworker

1. In particular, an undertaking provided clarifies that provisions of the Storage Services and Wholesale Award 2020 are intended to apply to employees covered by the Agreement where the Agreement is silent on a provision contained within the Award.

Interaction with the National Employment Standards 

1. Clause 7 of the Agreement provides that the Agreement will be read and interpreted in conjunction with the National Employment Standards (NES) and where there is an inconsistency, and the NES provides greater benefit, the more beneficial provision shall apply (NES precedence clause). On this basis, I am satisfied that the apparent inconsistencies with the NES outlined below do not prevent the approval of this agreement:    

a.Clause 16.11 of the Agreement provides that severance pay is not payable where the employer finds suitable alternative employment. Section 120 of the Act deals with circumstances in which a variation to redundancy pay can be sought where an employer obtains other acceptable employment for an employee. In particular, an application is required to be made to the Commission for a determination. The operation of clause 7 of the Agreement – the NES precedence clause – is therefore likely to mean that despite clause 16.11, the amount of redundancy or severance pay cannot be varied without compliance with s 120 of the Act.

b.Clause 17.1.5 of the Agreement provides that notice is not applicable in a case of dismissal for conduct that justifies instant dismissal. Section 123 of the Act deals with circumstances in which employees may not be entitlement to notice of termination. As a result of the NES precedence clause, this clause must be read subject to s 123 of the Act and, if it were to operate in a way less beneficial to an employee than the Act, the provisions of the Act would prevail.

c.Clause 23.1 of the Agreement provides that the standard hours of work shall be 40 hours per week. Section 62(1) of the Act provides that an employer must not request or require an employee to work more than 38 ordinary hours of work in a week unless the additional hours are reasonable. The operation of the NES precedence clause will mean s 62(1) will prevail such that the employees covered by this agreement must not be requested or required to work more than 38 hours of work in a week unless the additional hours are reasonable.

d.Clause 34.4 of the Agreement provides that that the employer and a majority of affected employees may agree to substitute a public holiday for another day. 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 employee, rather than a majority of employees. However, when read in conjunction with the NES precedence clause (clause 7) clause 34.4 will have no effect to the extent of any inconsistency with s 115(3) of the Act.

Consideration

1. 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. The United Workers Union (UWU) 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 UWU.

1. The Agreement is approved and, in accordance with s.54 of the Act, will operate 7 days after approval.

COMMISSIONER

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ANNEXURE A