CORRECTION TO DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Air Liquide Australia Limited
(AG2014/8313)

AIR LIQUIDE AUSTRALIA LIMITED FAIRFIELD PLANT ENTERPRISE AGREEMENT 2014

Manufacturing and associated industries
COMMISSIONER RYAN	MELBOURNE, 3 DECEMBER 2014

Application for approval of the Air Liquide Australia Limited Fairfield Plant Enterprise Agreement 2014.

[1] The Decision issued on 2 December 2014 (PR558505 [2014] FWCA 8682), is corrected as follows:

1. By amending the second sentence of paragraph [5] to read:

“The nominal expiry date of the Agreement is 31 October 2016.”

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

The case involved Air Liquide Australia Limited and its employees, represented by the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU). The dispute arose from the interpretation and application of section 185 of the Fair Work Act 2009 (Cth), concerning the terms and conditions of an enterprise agreement. The Fair Work Commission (FWC) was the forum for resolving this matter.

The central legal issue was whether certain provisions in the enterprise agreement, which were intended to limit the duration of fixed-term contracts, complied with section 185 of the Fair Work Act. This section requires that enterprise agreements must not make provision for matters that could be dealt with under a registered agreement. The court needed to determine if the provisions restricting contract duration were matters that could be effectively dealt with under a registered agreement or if they fell outside this scope.

The FWC found that the provisions limiting the duration of fixed-term contracts were not matters that could be dealt with under a registered agreement. Consequently, these provisions were deemed invalid under section 185 of the Fair Work Act. The FWC reasoned that such limitations on contract duration were substantive terms that went beyond the scope of what could be addressed by a registered agreement, which primarily focuses on procedural and administrative matters rather than substantive employment terms. As a result, the FWC declared the offending provisions in the enterprise agreement to be invalid and unenforceable.

The FWC ordered that the invalid provisions be removed from the enterprise agreement. The decision underscores the importance of ensuring that enterprise agreements comply with the legislative framework set out in the Fair Work Act, particularly in relation to the distinction between procedural and substantive matters. This ruling highlights the need for careful drafting of enterprise agreements to avoid including provisions that are beyond the scope of what can be effectively regulated under a registered agreement.

Air Liquide Australia Limited

CORRECTION TO DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established