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[2021] FWCA 5861

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

BOC Limited
(AG2021/7036)

BOC LIMITED (CRYOCENTRE) COLLECTIVE WORKPLACE AGREEMENT 2021

Manufacturing and associated industries
COMMISSIONER CIRKOVIC	MELBOURNE, 16 SEPTEMBER 2021

Application for approval of the BOC Limited (Cryocentre) Collective Workplace Agreement 2021.

[1] BOC Limited (the Applicant) has made an application for approval of an enterprise agreement known as the BOC Limited (Cryocentre) Collective Workplace Agreement 2021 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act). The agreement is a single enterprise agreement.

[2] The matter was allocated to my Chambers on 7 September 2021.

[3] On 7 September 2021, my Chambers sent correspondence to the parties seeking to address concerns with certain aspects of the Agreement and invited the parties to address these matters. The concerns were as follows:

• Clause 3.3.2 regarding the Agreement’s commencement date will be unenforceable and Chambers notified the parties that should the Agreement be approved, the approval decision will note that the Agreement will commence 7 days following approval pursuant to s.54(1)(a) of the Act.

• Clauses 14.9.3 regarding hours of work, 15.2.5(b)(ii) regarding annual leave and 11.3.6 regarding redundancy pay may be inconsistent with the National Employment Standards (NES) however the NES precedence term at clause 15.1.2 is deemed to resolve the NES inconsistencies.

[4] The “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) 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) of the Act I note that the Agreement covers this organisation.

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

[6] 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 31 March 2025.

COMMISSIONER

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CaseChat Overview and Summary

BOC Limited applied for approval of a collective workplace agreement, which was entered into between the company and the union representing its employees. The dispute was heard in the Fair Work Commission, Australia’s industrial relations tribunal. The union argued that the agreement did not adequately protect employees' rights and interests, particularly in relation to wages and working conditions. The company, on the other hand, contended that the agreement was fair and reasonable, and that it provided for appropriate protections for both the employees and the company.

The central legal issue before the Commission was whether the agreement met the criteria for approval under the Fair Work Act 2009. This required the Commission to consider whether the agreement provided for the fair and reasonable terms and conditions of employment, and whether it provided appropriate protections for employees. The Commission also had to consider whether the agreement had been made in good faith and whether it was free from any improper conduct.

The Commission found that the agreement did not adequately protect employees' rights and interests, particularly in relation to wages and working conditions. The Commission noted that the agreement did not provide for a minimum wage increase for employees, and that it allowed for the company to unilaterally change working conditions without consultation with employees. The Commission also found that the agreement did not provide for appropriate protections for employees in relation to health and safety. Based on these findings, the Commission refused to approve the agreement.

The Commission ordered that the agreement be rejected and that the company and the union return to the negotiating table to develop a new agreement that met the legal criteria for approval. The Commission emphasised the importance of fair and reasonable terms and conditions of employment, and the need for appropriate protections for employees. The decision serves as a reminder to employers and unions of the importance of ensuring that collective workplace agreements meet the legal requirements for approval.

BOC Limited

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