DECISION

Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement

Cheetham Salt Limited
(AG2019/954)

CHEETHAM SALT LIMITED - PRICE, KEVIN AND LOCHIEL - ENTERPRISE AGREEMENT 2018

Salt industry
DEPUTY PRESIDENT MILLHOUSE	MELBOURNE, 22 JULY 2019

Application for approval of the Cheetham Salt Limited - Price, Kevin and Lochiel - Enterprise Agreement 2018.

[1] An application has been made for approval of an enterprise agreement known as the Cheetham Salt Limited - Price, Kevin and Lochiel - Enterprise Agreement 2018 (Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (Act). It has been made by Cheetham Salt Limited (Employer). The Agreement is a single enterprise agreement.

[2] 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.

[3] Subject to the undertakings, 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.

[4] I observe that the following clauses are likely to be inconsistent with the National Employment Standards (NES). However, noting clause 7.4 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:

• Clause 29.1 of the Agreement, which does not capture “injury” affecting an employee's immediate family or household member as part the definition of carer’s leave;

• Clause 32.2.2(a) of the Agreement, which defines a child for the purposes of adoption leave as a child that is less than five years of age; and

• Clause 39.7 of the Agreement, which states that the employer may pay a reduced amount (or no amount) of severance pay or pay in lieu of notice, if the employer obtains acceptable alternative employment for an affected employee.

[5] The Australian Workers’ Union and Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia, being bargaining representatives for the Agreement, have given notice under s.183 of the Act seeking to be covered by the Agreement. In accordance with s.201(2), I note that the Agreement covers the organisations.

[6] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 29 July 2019. The nominal expiry date of the Agreement is 30 June 2020.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

The matter before the Fair Work Commission was an application by Cheetham Salt Limited for the approval of an enterprise agreement known as the Cheetham Salt Limited - Price, Kevin and Lochiel - Enterprise Agreement 2018. The application was made under section 185 of the Fair Work Act 2009, seeking to have the agreement approved as a single enterprise agreement. The agreement was to cover employees represented by the Australian Workers’ Union and the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia.

The legal issues before the Commission were whether the agreement met the requirements of sections 186, 187, 188, and 190 of the Fair Work Act, and whether the written undertakings provided by the employer would not cause financial detriment to any employee or result in substantial changes to the agreement. Additionally, the Commission had to consider whether certain clauses in the agreement were inconsistent with the National Employment Standards and whether the more beneficial entitlements of the NES would prevail where there was an inconsistency.

The Deputy President found that the requirements of the relevant sections of the Fair Work Act had been met, subject to the employer's written undertakings. The Deputy President was satisfied that the undertakings would not cause financial detriment to any employee or result in substantial changes to the agreement. The Deputy President also found that certain clauses in the agreement were inconsistent with the NES, but noted that clause 7.4 of the agreement provided that the more beneficial entitlements of the NES would prevail where there was an inconsistency. The Deputy President approved the agreement, which will operate from 29 July 2019, with a nominal expiry date of 30 June 2020.

The final orders of the Fair Work Commission were that the Cheetham Salt Limited - Price, Kevin and Lochiel - Enterprise Agreement 2018 be approved as a single enterprise agreement, subject to the employer's written undertakings, and that the agreement will operate from 29 July 2019, with a nominal expiry date of 30 June 2020.

Cheetham Salt Limited

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established