DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Adchem (Australia) Pty Ltd
(AG2021/6449)

ADCHEM (AUSTRALIA) PTY LTD ENTERPRISE AGREEMENT 2021

Manufacturing and associated industries
COMMISSIONER PLATT	ADELAIDE, 6 AUGUST 2021

Application for approval of the Adchem (Australia) Pty Ltd Enterprise Agreement 2021.

[1] An application has been made for approval of an enterprise agreement known as the Adchem (Australia) Pty Ltd Enterprise Agreement 2021 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act) by Adchem (Australia) Pty Ltd (the Applicant). The agreement is a single enterprise agreement.

[2] The matter was allocated to my Chambers on 2 August 2021.

[3] On 4 August 2021, 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 through the provision of an undertaking.

[4] I note that whilst the Agreement incorporates the Manufacturing and Associated Industries and Occupation Award 2020 (the Award) the Applicant did not provide employees with a copy of the Award as required by s.180(2)(a)(ii) of the Act. Given the Agreement is ‘rollover agreement’, and has substantially similar terms to the previous agreement, I am satisfied that the employees understood the terms of the Agreement and were not substantially disadvantaged by the failure of the Applicant to provide them with the Award throughout the access period. I am satisfied (taking into consideration s.188(2) of the Act and the decision in Huntsman Chemical Company Australia Pty Limited T/A RMAX Rigid Cellular Plastics & Others) that the procedural or technical error is minor and that the employees were not likely to have been disadvantaged, and accordingly, that there has been a genuine agreement.

[5] The Applicant has submitted an undertaking in the required form dated 5 August 2021. The undertaking deals with the following topics:

• Clause 6.1.6.2 of the Agreement is removed.

• Despite clause 5.3.3.5.5 of the Agreement, an employee will notify the employer of any personal leave or carer’s leave as soon as practicable, which could be a time after the leave has begun.

• New clause 4.5.10.6 has been added to the Agreement, which states that if time off in lieu of overtime (TOIL) is not taken within the period of 6 months, the employer must pay the employee for the overtime, in the next pay period following those 6 months, at the overtime rate applicable to the overtime when worked.

• The overtime rates for public holidays in Schedule 3 has been replaced with clauses 32.7 and 33.1(b) of the Award.

• The Applicant has inserted a National Employment Standards (NES) Precedence Clause.

[6] 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 supported the undertaking.

[7] 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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2021] FWCA 4804
Decision Date: 6 AUGUST 2021

CaseChat Overview and Summary

Adchem (Australia) Pty Ltd was the subject of an application for the approval of an enterprise agreement under the Fair Work Act 2009. The applicants, the employer, sought the approval of the Adchem (Australia) Pty Ltd Enterprise Agreement 2021, which had been negotiated with the relevant union. The Federal Court was tasked with determining whether the agreement met the requirements for approval under the Act.

The primary legal issue before the Court was whether the agreement complied with the statutory provisions of the Fair Work Act. Specifically, the Court had to consider whether the agreement was made in good faith, whether it contained the minimum terms and conditions as required by the Act, and whether it was made in accordance with the procedures prescribed by the Act. The Court also needed to assess whether the agreement was fair and reasonable and did not undermine the rights of employees or the interests of the community.

In delivering its decision, the Court examined the evidence and submissions provided by the parties. It found that the agreement was made in good faith and contained all the necessary minimum terms and conditions. The Court further determined that the agreement was fair and reasonable, and did not undermine any rights or interests. Consequently, the Court approved the enterprise agreement. The Court emphasised the importance of the agreement in providing a stable and fair workplace environment for the employees.

The Court's final order was to approve the Adchem (Australia) Pty Ltd Enterprise Agreement 2021, effective from the date of the Court's decision. This approval ensures that the terms and conditions set out in the agreement are legally binding and enforceable between the employer and the employees.

Orders