Air Liquide Australia Limited

[2019] FWCA 2100

[2019] FWCA 2100

FAIR WORK COMMISSION

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[3] In its application for approval the employer commented that the “Appendices document is a confidential document not to be published on the FWC website.”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 Our request can be distinguished as we are requesting for separate appendices submitted not be published, rather than redacted.”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 “open and transparent” (s.588(c) of the FW Act).

[9] In Oji Foodservices the Full Bench noted the diversity of decisions at first instance where Commission members had:

a) approved agreements with orders “that certain matters contained within the agreement (such as pay rates) be kept confidential”,

b) declined such requests. 3

[10] Oji Foodservices was the “first occasion on which this issue [was] the subject of consideration by a Full Bench.” 4 In that matter the Full Bench concluded that,

[48] In our view, s.601(4)(b) requires the Commission to publish in full an ‘enterprise agreement that has been approved by the FWC’. The construction we have adopted reflects the ordinary, everyday meaning of the word ‘publish’.

…

[72] The absence of a publicly available document setting out the wages to which employees employed under an enterprise agreement are entitled creates a barrier to the enforcement of the agreement. Further, as we have mentioned, the redaction of wage rates from a published enterprise agreement makes it impossible for any interested party to form their own view as to whether the agreement met the ‘better off overall test’. Such a consequence is inconsistent with the statutory direction in s.577(c), that the Commission must perform its functions and exercise its powers in a manner that is ‘open and transparent’.

[73] We reject the proposition that s.594 provides the requisite power for an order to redact wage rates from an enterprise agreement that has been approved by the Commission, for the purpose of publication under s.601(4)(b). Indeed, in our view it is not open to the Commission to make an order under s.594(1)(c) prohibiting or restricting publication of any material (including wage rates) that forms part of an approved enterprise agreement.

[74] It follows that the Deputy President lacked the requisite power to make the redaction decision. On that basis the appeal is upheld and the redaction decision is quashed. …

[11] I adopt the reasoning of the Full Bench in Oji Foodservices. I discern no difference between a proposal to redact wage rates (rejected by the Full Bench in Oji Foodservices) and the non-publication of appendices containing wage rates. To publish the Air Liquide Agreement without the appendices would offend against the requirement highlighted by the Full Bench in Oji Foodservices that the Commission “publish in full an ‘enterprise agreement that has been approved by the FWC. The Air Liquide Agreement was approved with the appendices. It must be published with the appendices.

[12] The Australian Workers’ Union (AWU) being a bargaining representative for the Air Liquide Agreement, has given notice under s.183 of the Act that it wants the Air Liquide Agreement to cover it. In accordance with s.201(2) I note that the Air Liquide Agreement covers the organisation.

[13] The Air Liquide Agreement is approved and, in accordance with s.54(1)(a) of the Act, will operate from 5 April 2019. The nominal expiry date of the Air Liquide Agreement is 30 June 2022.

COMMISSIONER

 1   [2018] FWCFB 7501.

 2 Ibid [44].

 3   Ibid [28] – [29].

 4 Ibid [30].

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