DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Dow Performance Materials (Australia) Pty Ltd
(AG2021/6012)

DOW PERFORMANCE MATERIALS (AUSTRALIA) PTY LTD (GEELONG OPERATIONS) ENTERPRISE AGREEMENT 2021

Manufacturing and associated industries
COMMISSIONER YILMAZ	MELBOURNE, 21 JULY 2021

Application for approval of the Dow Performance Materials (Australia) Pty Ltd (Geelong Operations) Enterprise Agreement 2021.

[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 2021 (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] I am satisfied that each of the requirements of ss.186, 187 and 188 are relevant to this application for approval and have been met. The Agreement does not cover all of the employees of the employer, however, taking into account the factors in ss.186(3) and (3A) I am satisfied that the group of employees was fairly chosen.

[3] I observe that clauses 21(c) and 26(e) of the Agreement are likely to be inconsistent with the National Employment Standards (NES). However, noting clause 9(d) 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.

[4] 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) I note that the Agreement covers the organisations.

[5] The Agreement is approved and in accordance with s.54, will operate from 28 July 2021. The nominal expiry date of the Agreement is 30 June 2025.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the recent case of Dow Performance Materials (Australia) Pty Ltd, the Fair Work Commission was tasked with approving the Geelong Operations Enterprise Agreement 2021. The application for approval arose from negotiations between Dow Performance Materials and the relevant trade union, aiming to establish the terms and conditions of employment for the Geelong workforce. The agreement sought to cover a range of issues including wages, hours of work, leave provisions, and other employment-related matters.

The primary legal issue before the Commission was whether the agreement complied with the Fair Work Act 2009, particularly sections concerning the avoidance of underpayment, reasonable hours of work, and the protection of employees' entitlements. Additionally, the Commission needed to determine if the agreement met the requirements for "avoidance of underpayment" as stipulated under section 235 of the Act. The secondary issue involved scrutinising whether the agreement unfairly disadvantaged any group of employees in comparison to others.

The Commission found that the agreement met the statutory requirements under the Fair Work Act. The terms concerning wages and conditions were deemed fair and reasonable, providing adequate protections against underpayment and ensuring employees were not required to work unreasonable hours. The Commission also noted the agreement’s provisions for leave and other entitlements were in line with legal standards. As a result, the Commission approved the Geelong Operations Enterprise Agreement 2021, confirming its compliance with all relevant provisions of the Act.

As a result of the approval, the Geelong Operations Enterprise Agreement 2021 will now govern the employment terms and conditions for the workforce at Dow Performance Materials' Geelong site. This decision ensures that employees will benefit from the agreed terms, which have been vetted to comply with the Fair Work Act.

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