BEGA PENRITH BLOW MOULDING ENTERPRISE AGREEMENT 2024

Application for approval of the Bega Penrith Blow Moulding Enterprise Agreement 2024

[1] Blowflex Mouldings Pty Ltd (the Employer) has made an application for approval of an enterprise agreement known as the Bega Penrith Blow Moulding Enterprise Agreement 2024 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement.

[2] The Agreement will apply to employees who are covered by the Manufacturing and Associated Industries and Occupations Award 2020 (the Award)

[3] Clause 22.26(b) provides that the company may deduct the amount from any entitlements owing to the team member for any purchased annual leave debt.

[4] Further, clause 30.9 provides that where an employee fails to give the required notice, the company may withhold an amount not exceeding the amount the employee would have been paid in respect of the period of notice required less any period of notice actually given. The effect of this is that this clause appears to permit the employer to deduct employee's entitlements under the NES (such as notice of termination, accrued but unused annual leave or long service leave on termination). This raises the issue that this provision may be inconsistent with Chapter 2 Part 2.2 Division 2 of the Act.

[5] The Employer provided an undertaking to address this issue.

[6] Clause 6 provides that the Agreement is to be read and interpreted in conjunction with the Award however it is unclear if award entitlements apply where the Agreement is silent.

[7] The Employer provided an undertaking to address this issue.

[8] Clause 10.3 of the Award provides that before commencing part-time employment, the employee and employer must agree in writing on the hours to be worked by the employee, the days on which they will be worked and the starting and finishing times for the work and the classification applying to the work to be performed.

[9] Further, clause 10.4 states that the terms of the agreement may be varied by consent in writing.

[10] Clause 42.6 of the Agreement provides that hours of part-time work between 30 to 38 will be subject to agreement between the team member and the company and that the roster will be established with agreement of the team member(s) concerned, however, the Agreement does not appear to specifically provide that before commencing part-time employment, the hours, days, starting and finishing times, classification and variation of the terms must be agreed in writing.

[11] The Employer provided an undertaking to address this issue.

[12] Clause 33.2(e) of the Award provides that an employee who works on an afternoon or night shift which does not continue for at least 5 successive afternoon or night shifts or 6 successive afternoon or night shifts in a 6-day workshop or for at least 38 ordinary hours must be paid for each shift 150% of the ordinary hourly rate for the first 3 hours and 200% thereafter.

[13] This entitlement appears silent in the Agreement as team members who are not continuous shift workers will be paid 15% extra of their hourly rate when working an afternoon or night shift under clause 36.1(b).

[14] The Employer provided an undertaking to address this issue.

[15] The Agreement appears to reference apprentices at clause 30.6 in relation to termination, however, rates of pay have not been provided.

[16] The Employer provided an undertaking to address this issue.

[17] Clause 14.2 of the Agreement provides that the ordinary hours of work, an average of 38 hours per week, will be worked in day, afternoon and night shifts as specified in clause 13.1 of the Bega Penrith Production & Logistics Enterprise Agreement 2023 (Operations EA).

[18] Clause 13.1 of the Operations EA states that shifts will be defined as starting at or between the nominated hours; day shift 4:00am to 8:00am, afternoon shift 12:00pm to 4:00pm and night shift 8:00pm to 12:00am.

[19] The current Agreement provides a definition of afternoon and night shift at clause 1.1 and clause 14.6 references a spread of hours provided under clause 14, however, it appears to be silent on the definition of day shift and the span of hours. Without a clear span of hours, it is unclear when dayworkers would work their ordinary hours. Further, it may be possible for dayworkers to work ordinary hours within a zone that constitutes overtime under the Award.

[20] The Employer provided an undertaking to address this issue.

Section 190 Undertakings

[21] The Employer provided written undertakings to address the above BOOT issues. A copy of the undertakings is attached as Attachment 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.

Section 186, 187, 188 and 190

[22] Subject to the undertakings referred to above, 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.

Section 183 Bargaining Representatives

[23] 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.

[24] In accordance with s.201(2), I note that the Agreement covers the UWU.

[25] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 16 April 2024. The nominal expiry date of the Agreement is 31 July 2027.

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