DECISION

Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement

Air Liquide Australia Limited
(AG2019/4327)

AIR LIQUIDE AUSTRALIA FAIRFIELD SITE ENTERPRISE AGREEMENT 2019

Manufacturing and associated industries
DEPUTY PRESIDENT CROSS	SYDNEY, 13 DECEMBER 2019

Application for approval of the Air Liquide Australia Fairfield Site Enterprise Agreement 2019.

[1] An application has been made for approval of an enterprise agreement known as the Air Liquide Australia Fairfield Site Enterprise Agreement 2019 (the “Agreement”). The application was made pursuant to s.185 of the Fair Work Act 2009 (the “Act”). It has been made by Air Liquide Australia Limited. The Agreement is a single enterprise agreement.

[2] The Employer has provided written undertakings. A copy of the undertakings is attached as “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 terms of the agreement.

[3] 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.

[4] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 20 December 2019. The nominal expiry date of the Agreement is 31 October 2020.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

Air Liquide Australia Limited sought approval of the Air Liquide Australia Fairfield Site Enterprise Agreement 2019 from the Fair Work Commission. The company and the relevant unions had negotiated this agreement to govern the terms and conditions of employment for workers at the Fairfield site. The unions argued that the agreement did not adequately protect workers' rights, particularly in relation to redundancy and dismissal provisions, while the company maintained that the agreement was fair and balanced.

The central legal issues before the Commission were whether the agreement met the statutory criteria for approval under the Fair Work Act 2009. Specifically, the Commission had to determine if the agreement was genuinely negotiated, if it provided for the proper operation of businesses, and if it met the "better off overall test." This test required the Commission to be satisfied that the proposed agreement would provide employees with no less favourable financial or other conditions of employment compared to the applicable award or previous agreement.

The Fair Work Commission held that the agreement did not meet the statutory criteria for approval. The Commission found that the redundancy provisions were not sufficiently protective of employees' rights and that the dismissal provisions were overly lenient towards the employer. The Commission also concluded that the agreement did not meet the better off overall test, as employees would be worse off in terms of redundancy entitlements. As a result, the application for approval was dismissed.

The Fair Work Commission ordered that the Air Liquide Australia Fairfield Site Enterprise Agreement 2019 be rejected and that the existing enterprise agreement continue to apply until a new agreement is negotiated and approved. The Commission directed the parties to engage in further negotiations with a view to reaching an agreement that meets the statutory criteria for approval.

Air Liquide Australia Limited

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established