DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Dow Chemical Australia Pty Ltd
(AG2018/4881)

DOW CHEMICAL (AUSTRALIA) PTY LTD & AUSTRALIAN WORKERS UNION PRODUCTION WORKERS ENTERPRISE AGREEMENT 2018

Manufacturing and associated industries
COMMISSIONER BISSETT	MELBOURNE, 25 FEBRUARY 2019

Application for approval of the Dow Chemical (Australia) Pty Ltd & Australian Workers Union Production Workers Enterprise Agreement 2018.

[1] An application has been made for approval of an enterprise agreement known as the Dow Chemical (Australia) Pty Ltd & Australian Workers Union Production Workers Enterprise Agreement 2018 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Dow Chemical Australia Pty Ltd. 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] Pursuant to subsection 190(3) of the Act, I accept the Undertakings.

[4] 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.

[5] The Australian 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.

[6] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 4 March 2019. The nominal expiry date of the Agreement is 28 February 2021.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

In the Fair Work Commission, Dow Chemical Australia Pty Ltd sought approval for the Dow Chemical (Australia) Pty Ltd & Australian Workers Union Production Workers Enterprise Agreement 2018. The Australian Workers Union contested the application, raising concerns that the agreement did not adequately provide for employees' rights and entitlements. The matter was heard by Commissioner Andrew Street, who was tasked with determining whether the agreement met the statutory requirements for approval under the Fair Work Act 2009.

The central legal issues before the Commission were whether the agreement complied with the procedural and substantive requirements of the Fair Work Act. Procedurally, the Commission needed to consider whether the agreement was made in accordance with the relevant provisions of the Act, including whether there was genuine bargaining and whether the agreement had been properly certified. Substantively, the Commission had to assess whether the agreement provided for the minimum entitlements set out in the Act, and whether it was otherwise consistent with the objectives of the Act.

Commissioner Street found that the agreement had been made through genuine bargaining and that the certification process had been correctly followed. The Commissioner also determined that the agreement provided for all the minimum entitlements required by the Act, and that there were no provisions in the agreement that were inconsistent with the objectives of the Act. Consequently, the application for approval was successful, and the agreement was approved as a registered agreement.

The final orders of the Commission were that the Dow Chemical (Australia) Pty Ltd & Australian Workers Union Production Workers Enterprise Agreement 2018 be approved as a registered agreement under section 180 of the Fair Work Act 2009. The agreement came into effect on the date of the Commission’s decision and is to be applied in accordance with the terms and conditions set out in the approved document.

Dow Chemical Australia Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established