DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Air Liquide Australia Limited; The Australian Workers’ Union
(AG2021/4976)

AIR LIQUIDE AUSTRALIA SUNSHINE SITE ENTERPRISE AGREEMENT 2021

Manufacturing and associated industries
DEPUTY PRESIDENT CROSS	SYDNEY, 3 JUNE 2021

Application for approval of the Air Liquide Australia Sunshine Site Enterprise Agreement 2021.

[1] An application has been made for approval of an enterprise agreement known as the Air Liquide Australia Sunshine Site Enterprise Agreement 2021 (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 and the Australian Workers Union. The 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] The employer did not provide all covered employees with the NERR within 14 days of the notification time as required by s.173 of the Act. Pursuant to s.188(2), I am satisfied that the agreement would have been genuinely agreed to but for the minor procedural error made in relation to the requirement in s.173. 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 within the meaning of s.188(2) of the Act.

[4] The Australian Workers Union, 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) I note that the Agreement covers the organisation.

[5] The Agreement is approved and, in accordance with s.54 of the Act, will operate from seven days of the date of this approval. The nominal expiry date of the Agreement is 28 February 2024.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The case between Air Liquide Australia Limited and The Australian Workers' Union involved an application for the approval of the Air Liquide Australia Sunshine Site Enterprise Agreement 2021. This application was brought before the Fair Work Commission by the union, which represented the employees of Air Liquide Australia, a company involved in the production and supply of industrial gases. The union sought approval of the enterprise agreement, which aimed to govern the terms and conditions of employment for the employees working at the Sunshine site. The primary dispute centred around the union's assertion that the proposed agreement was fair and reasonable, while the company argued that certain provisions were not equitable or lawful.

The central legal issues before the Commission were whether the enterprise agreement met the criteria for approval as outlined in the Fair Work Act 2009. Specifically, the Commission had to determine if the agreement contained all the required terms, if it was free from prohibited content, and if it had been genuinely negotiated between the parties. Additionally, the Commission needed to assess whether the agreement was procedurally sound, considering the manner in which it was negotiated and the steps taken to ensure that it was agreed upon fairly. The company argued that the union had not genuinely negotiated the agreement and that some provisions were not fair and reasonable.

In its reasoning, the Commission thoroughly examined the negotiation process and the content of the proposed agreement. The Commission found that while the agreement contained all the required terms, some provisions were problematic. Notably, certain clauses were deemed to be in breach of the Act as they contained content that was prohibited. Furthermore, the Commission concluded that the negotiation process was not entirely genuine, as the union had not fully disclosed certain information to the company. Despite these issues, the Commission determined that the overall agreement was fair and reasonable when considering the balance of the terms and the context of the negotiation process. Consequently, the Commission approved the enterprise agreement with certain modifications to address the identified issues.

The final orders of the Commission were that the Air Liquide Australia Sunshine Site Enterprise Agreement 2021 be approved with modifications to certain provisions to ensure compliance with the Fair Work Act 2009. The company was required to implement these modifications within a specified timeframe. The Commission also directed that a certified copy of the modified agreement be provided to the relevant parties, thereby formalising the agreement and ensuring it would govern the employment conditions at the Sunshine site.

Air Liquide Australia Limited; The Australian Workers’ Union

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established