Air Liquide Australia Limited

[2025] FWCA 1915

[2025] FWCA 1915

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s 185—Enterprise agreement

Air Liquide Australia Limited

(AG2025/952)

AIR LIQUIDE AUSTRALIA KWINANA PLANT ENTERPRISE AGREEMENT 2025

Manufacturing and associated industries
COMMISSIONER LIM	PERTH, 11 JUNE 2025

Application for approval of the Air Liquide Australia Kwinana Plant Enterprise Agreement 2025.

1. Air Liquide Australia Limited (the Applicant) has made an application for the approval of an enterprise agreement known as the Air Liquide Australia Kwinana Plant Enterprise Agreement 2025 (the Agreement). The application was made under s 185 of the Fair Work Act 2009 (Cth) (the Act). The Agreement is a single enterprise agreement.

1. The application was accompanied by a signature page that did not comply in all respects with Regulation 2.06A of the Fair Work Regulations 2009 (Cth). An amended signature page was subsequently filed. I consider it appropriate in the circumstances to waive an irregularity in the form or manner in which an application was made and do so pursuant to s 586(b) of the Act.

1. The Notice of Employee Representational Rights (the NERR) that was filed with the application is a version that pre-dates the 6 June 2023 reforms. Pursuant to s 188(5) of the Act, I am satisfied that the Agreement would have been genuinely agreed to but for the minor technical error made in relation to the requirements set out in s 174(1A) of the Act. 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(5) of the Act.

1. The Applicant 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. 

1. In compliance with s 190(4) of the Act, the bargaining representatives’ views regarding the undertakings proffered were sought. They were provided with the opportunity to raise and address any objections they had to the undertakings proffered by the Applicant. No objection was raised.

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

1. I note that the following clauses in the Agreement appear to be inconsistent with the National Employment Standards (the NES):

(a)Clause 4.9 provides that ‘Where employees can’t be usefully employed due to industrial action (including any strike, ban or limitation), breakdown of the client's machinery, severe weather conditions preventing work, failure of essential services (e.g. power, water, sewage etc), or due to any other cause beyond the reasonable control of the Company, the Company may stand down employees without pay’. This appears to be more restrictive than the stand down provision at s 524 of the Act.

(b)Clause 4.8 appears to provide that in the case of termination, if employees do not give the required notice, the Employer may deduct from monies owing to the employee upon termination, an amount equivalent to the salary or wage they would have earned during the period for which the employee failed to give the required notice. This clause does not appear to limit the source of monies which may be deducted. The effect of this is that this clause appears to permit the employer to withhold monies owing to the employee under the NES. Further the clause does not limit the amount which may be deducted to 1 week’s wages as allowed by the Act. This raises the issue that this clause may be inconsistent with Chapter 2, Part 2.2, Division 2 of the Act.

(c)Clause 4.10 provides, ‘It is a condition of employment that employees notify the Company no later than 1 hour prior to the time they are required to commence ordinary working hours (except in extraordinary circumstances where it is not possible to do so) of their inability to attend work for any reason and the estimated duration of the absence. Failure to notify the Company after being absent for more than 48 hours, may result in disciplinary action, up to and including possible termination of employment’. This appears to contradict the notification requirements in Clauses 8.10 – Personal / Carers Leave and Clauses 9.4 – Compassionate Leave. It also appears to be inconsistent with the NES provisions at s 107 of the Act which provides that notice must be given as soon as practicable, which may be a time after the leave has started.

(d)Clause 5.1 defines ordinary hours for ASU Fitters as ‘40 hours per week’ and for ASU Plant Technicians as ‘42 hours per week’. This may be inconsistent with s 62 of the Act which provides that an employer must not request or require an employee to work, for a full-time employee, more than 38 hours of work in a week unless the additional hours are reasonable.

(e)Clause 7.2 expresses the entitlement to annual leave in hours rather than weeks as per s 87 of the Act.

1. However, I am satisfied that with the undertakings provided as referred to above, the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

1. The Australian Worker’s Union (the organisation), 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 organisation is covered by the Agreement.

1. The Agreement was approved on 11 June 2025 and, in accordance with s 54, will operate from 18 June 2025. The nominal expiry date of the Agreement is 31 March 2028.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

<AE529303  PR788047>

Annexure A