DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Air Liquide Australia Limited
(AG2018/7223)

AIR LIQUIDE AUSTRALIA WACOL SITE ENTERPRISE AGREEMENT 2018

Manufacturing and associated industries
COMMISSIONER JOHNS	MELBOURNE, 29 MARCH 2019

Application for approval of the Air Liquide Australia Wacol Site Enterprise Agreement 2018.

[1] An application has been made for approval of an enterprise agreement known as the Air Liquide Australia Wacol Site Enterprise Agreement 2018 (Air Liquide Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (Cth) (FW Act). It has been made by Air Liquide Australia Limited. The Air Liquide Agreement is a single enterprise agreement.

[2] I am satisfied that each of the requirements of ss.186, 187 and 188 as are relevant to this application for approval have been met.

[3] In its application for approval the employer commented that the “Appendices document is a confidential document not to be published on the FWC website.” On 21 March 2019 my Chambers wrote to the employer inviting a submission from it about the “nature of the confidentiality attaching to Appendix A and Appendix B.” I further noted that “enterprise agreements are routinely published to the website detailing rates of pay and conditions.”

[4] On 28 March 2019 the employer replied. It noted that in the predecessor agreement the appendices were not published. Further, it stated that,

“It is not the Company’s intent to hide the salary rates and increases from our staff or the AWU, and the approach of having separate appendices was supported by union representatives during enterprise bargaining discussions.”

[5] I was then referred to the recent Full Bench decision in Australian Workers’ Union v Oji Foodservice Packaging Solutions (Aus) Pty Ltd. 1 The employer then submitted,

“This case however is in relation to redacting wage rates contained in an enterprise agreement. Our request can be distinguished as we are requesting for separate appendices submitted not be published, rather than redacted.”

[6] For the reasons set out below, I reject that submission.

[7] The wage rates contained in an enterprise agreement may be of interest to a range of persons other than the employees to whom the agreement applies and the unions covered by the agreement, who might seek to enforce the entitlements of their members. For example, academics, students, economists and statisticians have an interest in wage trends and outcomes. They would be deprived of important research material if wage rates were routinely not published by the Commission. In the Oji Foodservice decision the Full Bench also noted that (in that case) “the redaction of wage rates also makes it impossible for any interested party to form their own view of with the … agreement met the ‘better off overall test’ in ss. 186(2) and 193.” 2

[8] Non-publication would be inconsistent with the Commission’s obligation to publish decisions (section 601 of FW Act) and additional obligation to perform its functions and exercise its powers in a manner that is…

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.

Keep reading for free

Create a free CaseChat account to read Air Liquide Australia Limited and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2019] FWCA 2100
Decision Date: 29 MARCH 2019

CaseChat Overview and Summary

Air Liquide Australia Limited applied to the Fair Work Commission for approval of the Air Liquide Australia Wacol Site Enterprise Agreement 2018. The application was made under section 234 of the Fair Work Act 2009. The dispute centred on the proposed terms and conditions of employment for workers at the Wacol site, including wages, hours of work, and other employment-related matters. The Fair Work Commission was tasked with determining whether the proposed agreement met the criteria for "better off overall" and whether it was in the best interests of the employees.

The primary legal issue was whether the proposed enterprise agreement would provide a net benefit to the employees, as required by section 235 of the Fair Work Act. This involved assessing the financial implications of the agreement on the employees, including wages, benefits, and working conditions, and comparing these against the existing conditions. The Commission also needed to consider whether the agreement complied with the requirements of the Act, including provisions for procedural fairness and the protection of employee rights. The court had to balance the interests of the employer in maintaining operational efficiency against the rights and protections afforded to employees under the Fair Work Act.

In its decision, the Fair Work Commission determined that the proposed agreement was in the best interests of the employees. The Commission found that the agreement provided for fair and reasonable terms and conditions of employment, and that the employees would be better off overall with the proposed changes. The Commission noted that the agreement included provisions for increased wages, improved working conditions, and additional benefits for employees. The decision was based on a comprehensive analysis of the financial implications of the agreement and the views of the employees, as expressed through the bargaining process. The Fair Work Commission concluded that the proposed agreement met the statutory criteria and approved it under section 234 of the Fair Work Act.

The Fair Work Commission ordered the approval of the Air Liquide Australia Wacol Site Enterprise Agreement 2018. The agreement was to be registered with the Fair Work Commission and would come into effect on the date specified in the agreement. The decision was made in accordance with the provisions of the Fair Work Act, ensuring that the rights and interests of both the employer and employees were appropriately balanced and protected.

Orders