Asian Pacific Colorants Pty Ltd T/A AP Colorants Summary

[2022] FWCA 3229

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Asian Pacific Colorants Pty Ltd T/A AP Colorants

(AG2022/3460)

Asian Pacific Colorants Pty Ltd - Thomastown Site - Enterprise Agreement 2021

Manufacturing and associated industries
COMMISSIONER LEE	MELBOURNE, 15 SEPTEMBER 2022

Application for approval of the Asian Pacific Colorants Pty Ltd - Thomastown Site - Enterprise Agreement 2021

An application has been made for approval of an enterprise agreement known as the Asian Pacific Colorants Pty Ltd - Thomastown 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 Asian Pacific Colorants Pty Ltd T/A AP Colorants. The Agreement is a single enterprise agreement.

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

The United 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.

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

·   Clause 17.3 – Abandonment of Employment.
·   Clause 20.8 – Employees Exempted.
·   Clause 21.1.6 and 21.5 – Termination of Employment.
·   Clause 35.8 – Cashing out of Annual Leave.
·   Clause 36.1 – Personal Leave.
·   Clause 41.3.1 and 41.3.2 – Public Holidays.

However, noting clause 9 of the Agreement, I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 22 September 2022. The nominal expiry date of the Agreement is 30 November 2024.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

Asian Pacific Colorants Pty Ltd, trading as AP Colorants, sought approval for the Asian Pacific Colorants Pty Ltd - Thomastown Site - Enterprise Agreement 2021. The application was heard in the Fair Work Commission, where the company aimed to have the proposed enterprise agreement registered and approved. The legal issues that the Commission had to decide involved the validity and enforceability of the agreement in accordance with the Fair Work Act 2009. Key points of contention included whether the agreement met the requirements for being a ‘single enterprise agreement’, if it had been genuinely bargained, and if it adhered to the relevant provisions concerning the employees' terms and conditions.

The Commission examined the evidence provided by AP Colorants to determine if the agreement was fairly negotiated and if it complied with the statutory requirements. The company argued that the agreement represented a fair and reasonable compromise between the parties and included provisions that were beneficial to both employers and employees. The Commission considered submissions from both parties and the relevant statutory framework, ensuring that the agreement did not disadvantage any employee and was consistent with the objectives of the Fair Work Act. Ultimately, the Commission found that the agreement met the necessary criteria for approval, as it had been genuinely negotiated and did not contain any terms that were contrary to the public interest.

After careful consideration of the arguments and evidence presented, the Fair Work Commission approved the Asian Pacific Colorants Pty Ltd - Thomastown Site - Enterprise Agreement 2021. The decision was based on the conclusion that the agreement was fairly negotiated, complied with the statutory requirements, and did not disadvantage any of the employees. The approved agreement is now binding on the parties and will govern the terms and conditions of employment for the employees at the Thomastown site. The Commission's decision ensures that the agreement is legally enforceable and provides a framework for the ongoing relationship between AP Colorants and its employees.

Asian Pacific Colorants Pty Ltd T/A AP Colorants

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established