Chemsupply Australia Pty Ltd T/A Chemsupply Australia Pty Ltd

[2024] FWCA 3593

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

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

Chemsupply Australia Pty Ltd T/A Chemsupply Australia Pty Ltd

(AG2024/3317)

Scientific services
COMMISSIONER THORNTON	ADELAIDE, 14 OCTOBER 2024

Application for approval of the ChemSupply Australia Enterprise Agreement 2024

An application has been made for approval of an enterprise agreement known as the ChemSupply Australia Enterprise Agreement 2024 (the Agreement). The Application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Chemsupply Australia Pty Ltd (the Applicant). The Agreement is a single enterprise agreement.

The Applicant has provided written undertakings. 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.

Subject to the undertakings referred to above, I am satisfied that each requirement of ss186, 187, 188 and 190 as are relevant to this application for approval have been met. The undertakings are taken to be a term of the Agreement

Clause 16.5.2 of the Agreement, as it relates to withholding monies on termination of employment may be inconsistent with the National Employment Standards (NES). Noting clause 7 of the Agreement, I am satisfied that the more beneficial entitlements of the NES in the Act will prevail where there is an inconsistency between the Agreement and the NES.

The Agreement is approved and will operate in accordance with s.54 of the Act from 21 October 2024. The nominal expiry date of the Agreement is 30 June 2026.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

ANNEXURE A

CaseChat Overview and Summary

The Fair Work Commission was presented with an application for approval of the ChemSupply Australia Enterprise Agreement 2024, filed by Chemsupply Australia Pty Ltd. The agreement, which is a single enterprise agreement, was made under section 185 of the Fair Work Act 2009. The commission considered the application to determine whether the agreement met the requirements for approval and if it would result in any financial detriment to the employees.

The legal issues before the commission were primarily concerned with whether the terms of the proposed agreement complied with the statutory requirements outlined in sections 186, 187, 188, and 190 of the Act. The commission had to examine the applicant's written undertakings to ensure that they would not cause any financial harm to the employees and that they would not lead to substantial changes in the agreement. Additionally, the commission had to determine whether there were any inconsistencies between the agreement and the National Employment Standards (NES), specifically regarding the terms related to the withholding of monies upon termination of employment.

In its decision, the commission noted that the applicant had provided written undertakings that were satisfactory. The commission found that these undertakings would not cause financial detriment to the employees and would not lead to substantial changes in the agreement. The commission also observed that clause 16.5.2 of the agreement might conflict with the NES regarding the withholding of monies upon termination of employment. However, the commission was satisfied that clause 7 of the agreement ensured that the more beneficial entitlements of the NES would prevail in case of any inconsistency. Consequently, the commission approved the agreement, subject to the aforementioned undertakings, which were taken to be a term of the agreement as clause 16.5.2.

The agreement was approved to operate in accordance with section 54 of the Act from 21 October 2024, with a nominal expiry date of 30 June 2026.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established