Application for approval of the NCI Holdings Pty Ltd Rocklea Enterprise Agreement 2025

[1] NCI Holdings Pty Ltd Trading as NCI Packaging ("the Employer") has applied for approval of an enterprise agreement known as NCI Holdings Pty Ltd Rocklea Enterprise Agreement 2025 ("the Agreement"). The Application was made under section 185 of the Fair Work Act 2009 ("the Fair Work Act"). The Agreement is a single enterprise agreement.

[2] A party's application for the Commission's approval of an enterprise agreement must be accompanied by a signed copy of that agreement.[1] A copy of an enterprise agreement is a signed copy only if it is signed by the employer covered by the agreement and at least one representative of the employees covered by the agreement, and it includes each signatory's full name and address, and an explanation of their authority to sign.[2] There were some minor issues with the signature page. The Applicant provided a statutory declaration explaining that the same witness had variously used a manual and digital signature on the same document. Also, having regard to the filed materials, it is not in dispute, and there is no doubt, that the "Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU) was a bargaining representative and that the signatory, a senior official of the union, was authorised to sign on its behalf.

[3] In an abundance of caution, and to the extent necessary to do so: I exercise the power in section 586 of the Fair Work Act,[3] under paragraph (a) and/or paragraph (b) of that section, to correct any error in the application, and/or waive any irregularity in the form or manner in which it has been made, arising in relation to the signature page.

[4] The Employer provided a revised declaration (F17) to provide information about how employees who voted on the Agreement had a sufficient interest in its terms and were sufficiently representative.

[5] I sought submissions as to whether the Employer had given seven days' notice, or seven full days' notice, of the vote. The Employer indicated that in addition to the written notice of the vote being displayed for seven days, the Plant Manager advised employees of the vote over a longer period.

[6] The AMWU indicated its agreement with the employer's response in relation to these issues.

[7] The revised declaration indicates 22 out of 24 employees voted. I consider that employees were aware of the vote. In the event that not all of the employees were given notice seven full days before the vote, then for the purposes of s 188(5) I am satisfied that this error was a minor technical or procedural error and not likely to disadvantage any employees in the circumstances.

[8] The Agreement does not expressly contain a delegates' rights term. However, the Award is expressly incorporated into the Agreement. The Agreement prevails to the extent of inconsistency. Given the absence of a provision, I take it this means that the delegates' rights provision of the Award applies as a term of the Agreement, by incorporation. If I am wrong about that then pursuant to section 205A of the Fair Work Act, clause 40A of the Manufacturing and Associated Industries and Occupations Award 2020 is taken to be a term of the Agreement. This is a distinction without a difference; in either event the Award term applies.

[9] Noting clause 5 of the Agreement, I am satisfied that the more beneficial entitlements of the National Employment Standards ("NES") in the Fair Work Act will prevail where there is an inconsistency between the Agreement and the NES.

[10] In light of the foregoing, and after having regard to the Statement of Principles on Genuine Agreement as well as the application and declarations filed in this matter, I am satisfied that each of the requirements of sections 186, 187, and 188 of the Fair Work Act as are relevant to this application for approval have been met.

[11] The AMWU lodged a declaration in the prescribed form[4] giving notice under section 183 of the Fair Work Act that it wants the Agreement to cover it. In accordance with subsection 201(2) of the Fair Work Act, I note the Agreement covers the "Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU).

[12] The Agreement is approved and will operate in accordance with section 54 of the Fair Work Act. The nominal expiry date of the Agreement is 1 May 2028.

[1] Fair Work Act 2009 s 185(2)(a).

[2] Fair Work Act 2009 s 185(5) and Fair Work Regulations 2009 (Cth) r 2.06A.

[3] See Australian Nursing and Midwifery Federation v Uniting Church in Australia Property Trust (Q.) [2020] FWCFB 848, [128]-[129], applying CFMMEU v Griffiths Cranes Pty Ltd [2019] FWCFB 1717, [40]-[46].

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