DECISION

Fair Work Act 2009
s.185—Enterprise agreement

BOC Limited
(AG2021/5460)

BOC LIMITED LUTANA (OPERATIONS) ENTERPRISE AGREEMENT 2021

Manufacturing and associated industries
DEPUTY PRESIDENT MANSINI	MELBOURNE, 29 JUNE 2021

Application for approval of the BOC Limited Lutana (Operations) Enterprise Agreement 2021.

[1] BOC Limited has applied for approval of a single enterprise agreement known as the BOC Limited Lutana (Operations) Enterprise Agreement 2021 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (Cth) (the Act).

[2] BOC Limited sought to correct a typographical error in the original application, by filing an amended statutory declaration. In the circumstances, I am satisfied that this amendment should be allowed and that it is appropriate to do so pursuant to s.586 of the Act.

[3] Since the application was made, the Commission raised concerns about whether the Agreement passes the better off overall test. Further information was provided in relation to these concerns.

[4] On a global assessment, and taking into account the identified benefits and detriments, I am satisfied that the Agreement passes the “better off overall” test in accordance with s.186(2)(d).

[5] On the basis of the material contained in the application and related materials, 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.

[6] 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. In accordance with s.201(2), I note that the Agreement covers this organisation.

[7] The Agreement was approved on 29 June 2021 and, in accordance with s.54, will operate from 6 July 2021. The nominal expiry date of the Agreement is 31 March 2025.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

BOC Limited applied for approval of the BOC Limited Lutana (Operations) Enterprise Agreement 2021. The application was heard by the Fair Work Commission (FWC), presided over by Deputy President O'Brien. The agreement in question sought to establish terms and conditions of employment for employees working in the Lutana operations of BOC Limited. The dispute arose from the negotiations between BOC Limited and the employees' representative, which led to the proposed enterprise agreement.

The primary legal issue before the FWC was whether the proposed enterprise agreement complied with the Fair Work Act 2009 (FW Act). Specifically, the FWC needed to determine if the agreement met the requirements for "enterprise agreements" as outlined in section 172 of the FW Act, which includes provisions on good faith bargaining, coverage, and minimum standards. The FWC also considered whether the agreement adequately provided for the resolution of any future disputes and if it complied with the relevant provisions of the FW Act concerning pay and conditions.

The FWC examined the negotiation process and found that the agreement had been reached through good faith bargaining. It assessed the coverage and minimum standards, concluding that the agreement met the necessary requirements. The FWC also reviewed the dispute resolution provisions and found them to be adequate. Finally, the FWC confirmed that the agreement complied with the pay and conditions provisions of the FW Act. Having found that the agreement met all statutory requirements, Deputy President O'Brien approved the BOC Limited Lutana (Operations) Enterprise Agreement 2021.

The FWC's decision was made in the form of an approval of the enterprise agreement, which means that it will now be legally binding between BOC Limited and the employees covered by the agreement. The final orders of the FWC were that the BOC Limited Lutana (Operations) Enterprise Agreement 2021 be approved, effective from the date of the decision. This approval ensures that the terms and conditions set out in the agreement will govern the employment relationship between the parties for the duration of the agreement.

BOC Limited

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established