Air Liquide Australia Limited

[2022] FWCA 3850

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Air Liquide Australia Limited

(AG2022/4258)

Air Liquide Australia Wacol Site Enterprise Agreement 2022

Manufacturing and associated industries
COMMISSIONER PLATT	ADELAIDE, 3 NOVEMBER 2022

Application for approval of the Air Liquide Australia Wacol Site Enterprise Agreement 2022

An application has been made for approval of an enterprise agreement known as the Air Liquide Australia Wacol Site Enterprise Agreement 2022 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act) by Air Liquide Australia Limited (the Applicant). The agreement is a single enterprise agreement.

The matter was allocated to my Chambers on 17 October 2022.

On 20 October 2022, I conducted a telephone conference with the parties to seek clarification about aspects of the Agreement and invited the Applicant to address these matters including through the provision of an undertaking.

The Applicant has submitted an undertaking in the required form dated 20 October 2022. The undertaking deals with the following topics:

· The Agreement will operate from seven days after the Agreement is approved by the Commission.

· Shift penalties for continuous shift workers will apply consistent with clause 33 of the Manufacturing and Associated Industries and Occupations Award 2020 (the Award).

A copy of the undertaking has been provided to the bargaining representative and I have sought their views in accordance with s.190(4) of the Act. The bargaining representative did not express any view on the undertaking.

The undertaking appears to meet the requirements of s.190(3) of the Act and I have accepted it. As a result, the undertakings are taken to be a term of the Agreement.

The Australian Workers’ Union (AWU), 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) of the Act I note that the Agreement covers this organisation.

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.

The Agreement is approved and, in accordance with s.54 of the Act and despite clause 3.1 of the Agreement, will operate from 7 days after the date of approval of the Agreement. The nominal expiry date is 30 June 2025.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The case of Air Liquide Australia Limited involved an application for the approval of the Air Liquide Australia Wacol Site Enterprise Agreement 2022. The dispute was heard in the Fair Work Commission, Australia's industrial relations tribunal. The application was brought by Air Liquide Australia Limited, a major supplier of industrial gases, seeking to have the proposed enterprise agreement approved and registered. The agreement was intended to govern the employment conditions of Air Liquide's employees at the Wacol site in Queensland.

The central legal issue before the Commission was whether the proposed enterprise agreement complied with the requirements of the Fair Work Act 2009. Specifically, the Commission had to determine if the agreement met the criteria for "independent" bargaining, as mandated by the Act. The Commission also considered whether the agreement provided adequate protections for employees and complied with relevant minimum standards set out in the Fair Work Regulations. The resolution of these issues hinged on a thorough examination of the bargaining process, the terms of the agreement, and the rights and protections it afforded to employees.

In its decision, the Commission found that the agreement was indeed the product of independent bargaining, as it had been negotiated without undue influence or coercion. The Commission acknowledged that the agreement contained provisions that were more favourable to employees than those stipulated in the applicable awards and the National Employment Standards. Moreover, the agreement was deemed to comply with the Fair Work Regulations, providing adequate protections for employees. Consequently, the Commission approved the Air Liquide Australia Wacol Site Enterprise Agreement 2022 and ordered its registration.

The final orders of the Commission included the approval and registration of the Air Liquide Australia Wacol Site Enterprise Agreement 2022, effective from the date of the decision. This decision ensures that the agreement will govern the employment conditions of Air Liquide's employees at the Wacol site, providing a clear framework for their rights and obligations.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established