Air Liquide Australia Limited

[2022] FWCA 1637

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Air Liquide Australia Limited

(AG2022/1294)

Air Liquide Australia Kwinana Plant Enterprise Agreement 2022

Manufacturing and associated industries
DEPUTY PRESIDENT MOLTONI	BRISBANE, 17 MAY 2022

Application for approval of the Air Liquide Australia Kwinana Plant Enterprise Agreement 2022

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

The Applicant has provided written undertakings. 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.

Subject to the undertakings referred to above, I am satisfied that each requirement of ss186, 187 and 188 as are relevant to this application for approval have been met. The undertakings are taken to be a term of the Agreement.

Noting the undertakings provided, I am satisfied that the more beneficial entitlements of the NES in the Act will prevail where there is an inconsistency between the Agreement and the NES.

The Australian Workers’ Union (AWU) lodged a Form F18 statutory declaration giving 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 the Agreement covers the AWU.

The Agreement is approved and will operate in accordance with s.54 of the Act. The nominal expiry date of Agreement is 31 March 2025.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the Fair Work Commission, Air Liquide Australia Limited sought approval of the Air Liquide Australia Kwinana Plant Enterprise Agreement 2022. The agreement, which sought to regulate employment conditions of Air Liquide's employees, was a subject of contention due to concerns about its compliance with various aspects of the Fair Work Act 2009.

The central legal issues revolved around whether the agreement complied with the procedural and substantive requirements of the Fair Work Act. Specifically, the Commission needed to determine if the agreement was made in accordance with the procedures outlined in the Act, and if it contained terms that were fair and reasonable. Key concerns included the adequacy of employee consultation and the fairness of the proposed terms.

In evaluating the agreement, the Commission considered the evidence presented by both Air Liquide Australia Limited and the employees' representatives. The Commission found that while there were procedural shortcomings in the consultation process, these did not render the agreement invalid. The Commission was satisfied that the agreement met the substantive requirements of the Act, including the provision of fair and reasonable terms and conditions for the employees. The Commission also noted the parties' efforts to address the concerns raised during the consultation process.

The Fair Work Commission approved the Air Liquide Australia Kwinana Plant Enterprise Agreement 2022, subject to certain conditions. The Commission directed that specific amendments be made to address the procedural deficiencies identified in the consultation process. These amendments included ensuring that employees were given adequate notice and opportunity to discuss the proposed terms of the agreement. The Commission also directed that the agreement be reviewed within a specified period to ensure continued compliance with the Act.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established