Wespine Industries Pty Ltd

[2022] FWCA 3081

[2022] FWCA 3081

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Wespine Industries Pty Ltd

(AG2022/3120)

Wespine Industries Pty Ltd Enterprise Agreement 2022 -2025

Timber and paper products industry
COMMISSIONER PLATT	ADELAIDE, 6 SEPTEMBER 2022

Application for approval of the Wespine Industries Pty Ltd Enterprise Agreement 2022 -2025

1. An application has been made for approval of an enterprise agreement known as the Wespine Industries Pty Ltd Enterprise Agreement 2022 -2025 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act) by Wespine Industries Pty Ltd (the Applicant). The agreement is a single enterprise agreement.

1. The matter was originally allocated to Deputy President Beaumont’s Chambers on 1 August 2022. Deputy President Beaumont issued directions on 2 August 2022, requesting the Applicant provide submissions and undertakings addressing certain issues. The matter was further allocated to my Chambers on 29 August 2022.

1. The Applicant has submitted an undertaking in the required form dated 5 September 2022. The undertaking deals with the following topics:

·   The definition of a shift worker will be for the purposes of the National Employment Standards (NES).

·   Clauses 5.5(c), 5.5(h)(2) and 13.2(b)(2) of the Agreement will have no effect to the extent that they are inconsistent with s.326 of the Act.

·   Notwithstanding clauses 6.2(a)(1), 6.2(b)(1) and 6.3(c)(1) of the Agreement, an employee may refuse to work additional hours if such hours are unreasonable.

· Clause 5.5(d)(6) of the Agreement has no effect to the extent it is inconsistent with the meaning of serious misconduct contained at regulation 1.07 of the Fair Work Regulations 2009.

·   Employees who abandon their employment will be entitled to notice of termination in accordance with the NES.

·   An employee is entitled to paid annual leave in accordance with s.87(1) of the Act.

·   The company will comply with clauses 11.2 and 11.3 of the Timber Industry Award 2020 (the Award) in relation to the engagement of part-time employees.

·   All work performed by wages employees on public holidays will be paid for at the rate of 250% of the ordinary hourly rate with a minimum payment of three hours.

·   Wages employees (other than continuous shift work employees), who works non-rotating night shifts shall be paid an additional 30% for each ordinary hour of night shift worked.

·   A salaried employee who works on a continuous shift work basis may choose to take their accrued “extra hours” as time-off-in-lieu (TOIL) or cash out “extra hours” back to a zero balance at the end of each 8-week cycle.

·   If, on termination of employment, time off for “extra hours” worked by a salaried employee has not been taken, the company will pay the employee for the “extra hours” at the rate applicable to the “extra hours” when worked, being 200% of the ordinary hourly rate.

·   Clause 5.3(b) of the Agreement will not be enforced.

·   An employee may request to convert from a salaried employee to a wages employee or vice versa once in each 12-month period.

·   Wages employees who are rostered for weekend work will be engaged for a minimum of three hours.

·   Any salaried employee who works overtime on a Saturday on the instructions of the company will be paid no less than what they would be entitled to be paid under clause 26.6 of the Award.

·   A salaried employee who is directed to work on a public holiday will be paid at their base rate of pay for their normal rostered hours.

·   The company will not employ part-time employees as salaried employees on a continuous shift work basis.

·   Non-continuous shift work salaried employees who work “extra hours” will accrue a bonus payment of 100% for each additional hour above zero hours balance, with the extra hours to be paid into the weekly pay cycle exclusive of Sunday hours referred to at clause 6.2(f).

·   A wages employee who performs work on a Saturday on the instruction of the company will be paid an additional 50% of their base rate of pay for the first two hours and an additional 100% thereafter.

·    The reference to clause 8.2(f) in clause 6.4(b)(1) of the Agreement will be interpreted as a reference to clause 6.2(f).

1. 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 that responded did not oppose the undertaking.

1. 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.

1. The Australian Workers’ Union (AWU) and the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU), being bargaining representatives for the Agreement, have given notice under s.183 of the Act that they want the Agreement to cover them. In accordance with s.201(2) of the Act I note that the Agreement covers these organisations.

1. 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. The Agreement is approved and, in accordance with s.54 of the Act, will operate from 7 days after the date of approval of the Agreement. The nominal expiry date is 5 September 2025.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

<AE517320  PR745534>