The Laminex Group Pty Ltd

[2019] FWCA 1201

[2019] FWCA 1201

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

The Laminex Group Pty Ltd
(AG2018/6651)

LAMINEX PERTH DISTRIBUTION CENTRE AGREEMENT 2018

Timber and paper products industry
COMMISSIONER PLATT	ADELAIDE, 27 MARCH 2019

Application for approval of the Laminex Perth Distribution Centre Agreement 2018.

[1] An application has been made for approval of an enterprise agreement known as the Laminex Perth Distribution Centre Agreement 2018 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act) by the Laminex Group Pty Ltd. The agreement is a single enterprise agreement.

[2] The matter was allocated to my Chambers on 8 February 2019.

[3] On 13 February 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 13 February 2019. The undertaking deals with the following topics:

•  The Applicant has inserted a National Employment Standards (NES) precedence clause.

•  Clauses 1 and 2 of schedule 1 of the Agreement shall not apply.

•  Clauses 5 and 9 of schedule 1 of the Agreement, which relates to abandonment of employment, will operate subject to the notice provisions contained in the NES.

•  For the purposes of clause 21.13.4 of schedule 1 of the Agreement, annual leave loading will be paid on termination in accordance with the Act.

•  For the purposes of clause 20 of schedule 1 and clause 21.1 of the Agreement, the Applicant undertakes that employees will be entitled to 4 weeks of annual leave which will accrue progressively.

•  Clause 20.6 of the Agreement, which relates to the cashing out of annual leave, will operate subject to the requirement that employee’s remaining accrued entitlement to paid annual leave is not less than 4 weeks in accordance with the NES.

•  Clause 21.7 of schedule 1 of the Agreement shall not apply to the extent of any inconsistency with clause 20, such that employees may request to cash out annual leave.

•  In relation to clause 21.2 of schedule 1 of the Agreement, the definition of a shift worker will be for the purposes of the NES.

•  For the purposes of clause 22.4.2 of schedule 1 and clause 17 of the Agreement, employees will be entitled to 10 days of personal leave per year as per the NES.

•  For the purposes of clause 22.5 of schedule 1 of the Agreement, employees will be entitled to 2 days unpaid carer’s leave in accordance with the NES.

•  Clause 25 of schedule 1 of the Agreement will apply in accordance with the NES, specifically:

•  Clause 25.1.1 – the definition of a child means a child of the employee who is or will be under the age of 16 years as at the day, or proposed day of placement, in accordance with the NES.

•  Clause 25.2.2 shall not apply.

•  Clause 25.3.1 – the Applicant undertakes that an employee is entitled to concurrent leave for a period no longer than 8 weeks in total, in accordance with the NES; and may request to return to work on a part time basis, regardless of the child’s age.

•  For the purposes of clause 16 of schedule 1 of the Agreement, which relates to time off in lieu (TOIL), will operate such that the period of time off that an employee is entitled to take is equivalent to the overtime payment that would have been made.

•  In relation to clause 18.4 of schedule 1 of the Agreement, the Applicant undertakes that ordinary shifts, the major portion of which that are worked on a public holiday, shall be paid at double time and a half.

[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 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.

[8] The Agreement filed in the Commission contains a copy of Schedule 2.3 Model Consultation Term at the end of the document. The term appears to have been inserted by Commission previously and it is understood by the parties that this term was part of the Agreement that the employees voted on. According it is not necessary for the Commission to insert the term.

[9] The “Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU)”, 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 13 September 2021.

COMMISSIONER

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