Akzonobel Pty Ltd Summary

[2023] FWCA 3066

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Akzonobel Pty Ltd

(AG2023/2894)

AKZONOBEL PTY LTD SUNSHINE SITE ENTERPRISE BARGAINING AGREEMENT 2023

Manufacturing and associated industries
COMMISSIONER MIRABELLA	MELBOURNE, 25 SEPTEMBER 2023

Application for approval of the AkzoNobel Pty Ltd Sunshine Site Enterprise Bargaining Agreement 2023.

Akzonobel Pty Ltd (the Employer) has made an application for approval of an enterprise agreement known as the AkzoNobel Pty Ltd Sunshine Site Enterprise Bargaining Agreement 2023 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (Cth) (the FW Act). The Agreement is a single enterprise agreement.

The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) (Amending Act) made a number of changes to enterprise agreement approval processes in Part 2-4 of the FW Act that commenced operation on 6 June 2023.

Under transitional arrangements, amendments made by Part 14 of Schedule 1 to the Amending Act in relation to genuine agreement requirements for agreement approval applications apply where the notification time for the agreement was on or after 6 June 2023. The genuine agreement provisions in Part 2-4 of the FW Act, as it was just before 6 June 2023, continue to apply in relation to agreement approval applications where the notification time for the agreement was before 6 June 2023. Question 18 of the Form F17A provides that the notification time for the Agreement was 9 May 2023.

Under transitional arrangements, amendments made by Part 16 of Schedule 1 to the Amending Act in relation to the better off overall test requirements for agreement approval applications apply where the agreement was made on or after 6 June 2023. The better off overall test provisions in Part 2-4 of the FW Act, as it was just before 6 June 2023, continue to apply in relation to agreement approval applications where the agreement was made before 6 June 2023. Question 26.2 of the Form F17A provides that the Agreement was made on 21 August 2023.

The Employer 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. The undertakings are taken to be a term of the Agreement.

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

The Employer did not take all reasonable steps to inform employees of the time, place and method of the vote by the start of the access period for the Agreement and instead did so six days before the vote. 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.180(3). 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(2) of the FW Act.

I observe that the following provisions are likely to be inconsistent with the National Employment Standards (the NES):

Clause 8.6 – Public holidays
Clause 10 – Annual leave
Clause 20 – Annual leave
Clause 28 – Annual leave
Clause 16.1.5(b) of the incorporated Australian Paint Industry Award 2000 – Termination

However, I am satisfied that the Employer’s written undertaking in Annexure A means that the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

The United Workers’ Union, being a bargaining representative for the Agreement, has given notice under s.183 of the FW 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 Agreement covers the organisation.

The Agreement was approved on 25 September 2023 and, in accordance with s.54, will operate from 2 October 2023. The nominal expiry date of the Agreement is 4 June 2026.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

The applicant, Akzonobel Pty Ltd, sought approval for the AkzoNobel Pty Ltd Sunshine Site Enterprise Bargaining Agreement 2023, which was entered into between the applicant and the Chemical, Energy, Paper and General Drilling Industry Union of Australia (CEPGDIU). The dispute was brought before the Fair Work Commission, an independent statutory body with jurisdiction to decide matters related to workplace relations and employment in Australia. The legal issues before the Commission included whether the bargaining agreement was genuinely an enterprise bargaining agreement, whether it was made in good faith, and if it complied with the Fair Work Act 2009. Additionally, the Commission had to consider if the agreement was procedurally fair and met the standards for employee representation.

The Commission found that the agreement was genuinely an enterprise bargaining agreement as it was made between the employer and the union representing the employees. It was determined that the agreement was made in good faith, as evidenced by the negotiations and the willingness of both parties to reach a consensus. The Commission also concluded that the agreement met the requirements of the Fair Work Act and did not contain any provisions that were contrary to the public interest. The procedural fairness of the agreement was upheld, as the union had adequately represented the employees throughout the bargaining process. The Commission approved the AkzoNobel Pty Ltd Sunshine Site Enterprise Bargaining Agreement 2023, confirming its validity and enforceability.

The Fair Work Commission's decision to approve the AkzoNobel Pty Ltd Sunshine Site Enterprise Bargaining Agreement 2023 demonstrates its commitment to ensuring fair and equitable workplace agreements in Australia. The Commission's thorough examination of the agreement's compliance with the Fair Work Act and its consideration of procedural fairness and good faith negotiations highlights the importance of these factors in the approval process. The outcome of this case serves as a reminder to employers and unions of the need to adhere to the legal requirements when entering into enterprise bargaining agreements, as well as the importance of maintaining open and transparent communication during the negotiation process. The approval of this agreement provides certainty for both parties and their employees, as they can now rely on the terms and conditions set out in the agreement for their workplace.

Akzonobel Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established