Viscount Plastics (Australia) Pty Ltd

[2024] FWCA 47

[2024] FWCA 47

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Viscount Plastics (Australia) Pty Ltd

(AG2023/5080)

VISCOUNT PLASTICS (AUSTRALIA) PTY LTD WESTERN AUSTRALIA ENTERPRISE AGREEMENT 2023 - 2025

Manufacturing and associated industries
COMMISSIONER LIM	PERTH, 8 JANUARY 2024

Application for approval of the Viscount Plastics (Australia) Pty Ltd Western Australia Enterprise Agreement 2023 - 2025

1. Viscount Plastics (Australia) Pty Ltd has made an application for the approval of an enterprise agreement known as the Viscount Plastics (Australia) Pty Ltd Western Australia Enterprise Agreement 2023 - 2025 (the Agreement). The application was made under s 185 of the Fair Work Act 2009 (Cth) (the Act). The Agreement is a single enterprise agreement.

1. The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) (the Amending Act) made several changes to enterprise agreement approval processes in Part 2-4 of the Act, which commenced operation on 6 June 2023.

1. Under transitional arrangements, amendments made by Part 14 of Schedule 1 to the Amending Act in relation to genuine agreement requirements for agreement approval applications apply where the notification time for the agreement was on or after 6 June 2023. The genuine agreement provisions in Part 2-4 of the Act, as it was before 6 June 2023, continue to apply in relation to agreement approval applications where the notification time for the agreement was before 6 June 2023. The notification time for the Agreement was 19 April 2023.

1. The Agreement as lodged contained four typographical errors in clauses 5.1, 28.2(b), 28.3(c) and 28.3(f). On 22 December 2023, the Employer filed amended pages of the Agreement correcting these errors. I am satisfied that the corrections should be made and that it is appropriate to do so pursuant to s 218A of the Act.

1. The variation sought by the Applicant is to amend the words ‘Error! Reference source not found’ at clause 5.1, 28.2(b), 28.3(c) and 28.3(f) and replace them with the appropriate clause reference.

1. Section 218A of the Act came into effect on 7 December 2022 following the enactment of the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) and is as follows:

“218A  Variation of enterprise agreements to correct or amend errors, defects or irregularities

(1)The FWC may vary an enterprise agreement to correct or amend an obvious error, defect or irregularity (whether in substance or form).

(2)        The FWC may vary an enterprise agreement under subsection (1):

(a)    on its own initiative; or

(b)    on application by any of the following:

(i)one or more of the employers covered by the agreement;

(ii)an employee covered by the agreement;

(iii)  an employee organisation covered by the agreement.

(3)If the FWC varies an enterprise agreement under subsection (1), the variation operates from the day specified in the decision to vary the agreement.

1. Based on the material before me, I am satisfied that the error outlined in [5] should be corrected by varying the Agreement. There are no grounds of which I am aware which would tend against the exercise of my discretion to vary the Agreement.

1. The Applicant 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.

1. In compliance with s 190(4) of the Act, the bargaining representative’s views regarding the undertakings proffered were sought.  They were provided with the opportunity to raise and address any objections they had to the undertakings proffered by the Applicant.  No objection was raised.

1. Subject to the undertakings referred to above, and on the basis of the material contained in the application and accompanying declarations, 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.

1. I note that clause 15 of the Agreement provides compassionate leave where a member of an employee’s immediate family or household contracts or develops a serious illness or sustains a serious injury or dies. However, it is silent in relation to compassionate leave for stillbirth/miscarriage as is provided by s 104(1)(b) and (c) of the Act. Additionally, clause 22.7 states that if an employee fails to give the required notice or fails to work out the required notice period, the relevant salary or wage in lieu of notice will be due and payable to the Company and this will be offset against any monies due to the employee. The effect of this is that this clause appears to permit the employer to withhold monies owing to the employee under the NES. This raises the issue that clause 7.2(c) may be inconsistent with Chapter 2 Part 2.2 Division 2 of the Act. However, I am satisfied that under clause 3.4 of the Agreement, the more beneficial entitlements of the National Employment Standards (NES) will prevail where there is an inconsistency between the Agreement and the NES.

1. The United Workers Union (the organisation), 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), and based on the declaration provided by the organisation, I note that the organisation is covered by the Agreement.

1. The Agreement was approved on 8 January 2024 and, in accordance with s 54, will operate from 15 January 2024.  The nominal expiry date of the Agreement is 31 December 2025.

COMMISSIONER

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ANNEXURE A