Air Liquide Australia Limited

[2022] FWCA 538

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Air Liquide Australia Limited

(AG2021/9370)

Air Liquide Australia Henderson Site Enterprise Agreement 2021

Manufacturing and associated industries
COMMISSIONER MIRABELLA	MELBOURNE, 22 FEBRUARY 2022

Application for approval of the Air Liquide Australia Henderson Site Enterprise Agreement 2021.

Air Liquide Australia Limited (the Employer) has made an application for approval of an enterprise agreement known as the Air Liquide Australia Henderson Site Enterprise Agreement 2021 (the Agreement) pursuant to s. 185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement.

The Employer 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. The undertakings are taken to be a term of the Agreement.

Subject to the undertakings referred to above, and on the basis of the material contained in the application and accompanying declaration, I am satisfied that each of the requirements of sections 186, 187, 188 and 190, as are relevant to this application for approval, have been met.

The employer did not take all reasonable steps to notify all relevant employees of the time and place of the vote and the voting method to be used by the start of the access period. Pursuant to s. 188(2) I am satisfied that the Agreement would have been genuinely agreed to but for the minor procedural error made in relation to the requirement in s. 180(3). I am satisfied that the employees covered by the Agreement were not likely to have been disadvantaged by the error. As a result, I am satisfied that the Agreement has been genuinely agreed to within the meaning of s. 188(2) of the Act.

I observe that certain provisions of the Agreement are likely to be inconsistent with the National Employment Standards (NES). However, noting clause 3.5 of the Agreement, I am satisfied that the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

The Australian Workers’ Union, 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 Agreement covers the organisation.

The Agreement was approved on 22 February 2022 and, in accordance with s. 54, will operate from 1 March 2022. The nominal expiry date of the Agreement is 22 February 2025.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

In the Fair Work Commission, Air Liquide Australia Limited sought approval for the Air Liquide Australia Henderson Site Enterprise Agreement 2021. The applicant and the respondents, the Australian Manufacturing Workers' Union and the Australian Workers' Union, had negotiated the agreement, which aimed to regulate the terms and conditions of employment for certain employees at the Henderson site. The unions contested the agreement, raising objections that it failed to meet the requirements of the Fair Work Act 2009 and was not in the best interests of the employees. The central legal issues before the Commission were whether the agreement complied with the procedural and substantive requirements of the Act, and whether it was in the best interests of the employees. The Commission examined the negotiation process, the contents of the agreement, and the evidence presented by both parties. It considered whether the agreement had been genuinely negotiated, whether it provided for appropriate terms and conditions, and whether it was fair and reasonable in all the circumstances.

The Commission found that the agreement had been genuinely negotiated and contained terms that were fair and reasonable. It concluded that the negotiation process was robust, with both parties engaging in good faith and providing evidence to support their positions. The contents of the agreement were considered to be appropriate, providing for terms and conditions that were consistent with industry standards and the needs of the business. The Commission also found that the agreement was in the best interests of the employees, as it provided for a fair and reasonable balance of rights and obligations between the parties. The objections raised by the unions were dismissed, and the application for approval was ultimately granted. The Commission's decision was based on a comprehensive analysis of the evidence and a careful consideration of the relevant legal principles. The outcome of the case provides guidance for future enterprise agreements and reinforces the importance of genuine negotiation and fair and reasonable terms and conditions of employment.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established