Ameropa Australia Pty Ltd T/A Impact Fertilisers

[2024] FWCA 3194

[2024] FWCA 3194

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185 - Application for approval of a single-enterprise agreement

Ameropa Australia Pty Ltd T/A Impact Fertilisers

(AG2024/3000)

AMEROPA AUSTRALIA ENTERPRISE AGREEMENT 2024

Manufacturing and associated industries
COMMISSIONER CONNOLLY	MELBOURNE, 6 SEPTEMBER 2024

Application for approval of the Ameropa Australia Enterprise Agreement 2024

1. An application has been made for approval of an enterprise agreement known as the Ameropa Australia Enterprise Agreement 2024 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act) by Ameropa Australia Pty Ltd T/A Impact Fertilisers (the Applicant). The Agreement is a single enterprise agreement.

1. The matter was allocated to my Chambers on 20 August 2024.

1. The notification time for the Agreement under s.173(2) was 22 March 2024 and the Agreement was made on 24 July 2024.  Accordingly, the genuine agreement requirements the Agreement is to be assessed under are those applying after 6 June 2023 and the better off overall test (BOOT) is that applying on and from 6 June 2023. [1] 

1. On 28 August 2024, the Employer was invited to address aspects of the Agreement including through the provision of an undertaking.

1. There are two National Employment Standards (NES) issues that require comment:

·   Withholding of NES entitlements on termination – Clause 31.2 (b) states that if an employee fails to give notice the Company shall have the right to ‘withhold moneys due to the employee with a maximum amount equal to the ordinary time rate of pay for the period of notice.’ The clause does not appear to limit the source of monies withheld and as such may have the effect of withholding NES entitlements on termination.

·   Redundancy – Clause 32.4.5 of the Agreement provides that the entitlements set out in the Redundancy clause will not apply to employees who are offered comparable alternative employment by the Employer. This clause does not appear to provide that it is subject to the FWC, as required by s.120 of the Act.

1. Point 3 of the written undertakings acts as an effective NES precedence clause, in that it states that “...the Agreement will be read and interpreted in conjunction with the NES. Where there is an inconsistency between the Agreement and the NES, and the NES provides a greater benefit, the NES provision will apply to the extent of the inconsistency”. As a result of the NES precedence clause, the above clauses will not apply to the extent that they are inconsistent with the NES.

1. The Applicant has provided written undertakings, dated 2 September 2024, and a copy is attached in Annexure A. A copy of the undertaking has been provided to the bargaining representatives and I have sought their views in accordance with s.190(4) of the Act. The bargaining representatives did not express any view on the undertaking.

1. I am satisfied that the undertaking will not cause financial detriment to any employee covered by the Agreement and that the undertaking will not result in substantial changes to the Agreement, thus appearing to meet the requirements of s.190(3). The undertaking is taken to be a term of the Agreement.

1. Pursuant to s.205A(2) of the Act, the workplace delegates’ rights term prescribed by the Manufacturing and Associated Industries and Occupations Award 2020 is taken to be a term of the Agreement.

1. The “The Australian Workers’ Union” and ““Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU)” being bargaining representatives for the Agreement, have given notice under s.183 of the Act that they want the Agreement to cover them. In accordance with s.201(2) of the Act I note that the Agreement covers these organisations.

1. I am satisfied that each of the requirements of ss.186, 187, 188, 190, 193 and 193A of the Act as are relevant to this application for approval have been met.

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

COMMISSIONER

Annexure A

[1] The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) made a number of changes to enterprise agreement approval processes in Part 2-4 of the Fair Work Act. Those changes broadly commenced operation on 6 June 2023, subject to various transitional arrangements that included those to effect described above.

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