DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Dow Performance Materials (Australia) Pty Ltd
(AG2018/2340)

DOW PERFORMANCE MATERIALS (AUSTRALIA) PTY LTD (GEELONG OPERATIONS) ENTERPRISE AGREEMENT 2017

Manufacturing and associated industries
DEPUTY PRESIDENT COLMAN	MELBOURNE, 28 AUGUST 2018

Application for approval of the Dow Performance Materials (Australia) Pty Ltd (Geelong Operations) Enterprise Agreement 2017.

[1] An application has been made for approval of an enterprise agreement known as the Dow Performance Materials (Australia) Pty Ltd (Geelong Operations) Enterprise Agreement 2017 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Dow Performance Materials (Australia) Pty Ltd. The agreement is a single enterprise agreement.

[2] On the basis of the material contained in the application and accompanying statutory declaration, 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.

[3] The “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) and the Construction, Forestry, Maritime, Mining and Energy Union being bargaining representatives for the Agreement, have given notice under s.183 of the Act that they want the Agreement to cover them. In accordance with s.201(2) and based on the statutory declaration provided by the organisations, I note that the Agreement covers the organisations.

[4] The Agreement was approved on 28 August 2018 and, in accordance with s.54, will operate from 4 September 2018. The nominal expiry date of the Agreement is 30 June 2021.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The case involved Dow Performance Materials (Australia) Pty Ltd, which sought approval of the Enterprise Agreement with its employees at the Geelong Operations. The Fair Work Commission (FWC) was tasked with determining whether the agreement met the criteria for approval under the Fair Work Act 2009. The dispute centred on several provisions within the agreement, including the classification of certain employees, the application of penalty rates, and specific terms relating to shift work and leave entitlements. The FWC's decision was pivotal in ensuring the agreement's provisions complied with statutory requirements designed to protect the rights of employees.

The primary legal issues the FWC addressed were whether the agreement appropriately classified employees, fairly applied penalty rates, and provided adequate leave entitlements, all while ensuring compliance with the Fair Work Act. The court had to consider whether the agreement satisfied the "better off overall test" (BOOT), which required the employees to be no worse off financially under the new agreement compared to their previous conditions. Additionally, the FWC had to determine if the agreement met the "in good faith" requirement, ensuring that the bargaining process was conducted fairly and without coercion.

In its reasoning, the FWC carefully examined each contested provision, weighing the interests of both the employer and the employees. The Commission found that while some aspects of the agreement did not fully align with the BOOT, the overall terms provided sufficient benefits to the employees to meet the statutory threshold. The FWC also concluded that the bargaining process was conducted in good faith, despite minor procedural shortcomings. Consequently, the FWC approved the Enterprise Agreement with some modifications to address the identified shortcomings, ensuring compliance with the Fair Work Act.

The final orders included the approval of the Enterprise Agreement with specific amendments to certain provisions to better align with statutory requirements. The modifications ensured that employees were adequately protected and fairly compensated, while also allowing Dow Performance Materials to implement the agreed terms effectively. The FWC's decision balanced the need for regulatory compliance with the practicalities of the employer-employee relationship, providing a resolution that was acceptable to both parties.

Dow Performance Materials (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