Dyno Nobel Asia Pacific Pty Limited

[2023] FWCA 301

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Dyno Nobel Asia Pacific Pty Limited

(AG2022/5414)

DYNO NOBEL BAJOOL ENTERPRISE AGREEMENT 2022

Manufacturing and associated industries
COMMISSIONER SIMPSON	BRISBANE, 31 JANUARY 2023

Application for approval of the Dyno Nobel Bajool Enterprise Agreement 2022

An application has been made for approval of an enterprise agreement known as the Dyno Nobel Bajool Enterprise Agreement 2022 (the Agreement). The Application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Dyno Nobel Asia Pacific Pty Limited (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 and 188 as are relevant to this application for approval have been met. The undertakings are taken to be a term of the Agreement.

Noting clause 2.4 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.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Dyno Nobel Asia Pacific Pty Limited applied to the Fair Work Commission for approval of the Dyno Nobel Bajool Enterprise Agreement 2022. The application arose from negotiations between the company and the Construction, Forestry, Maritime, Mining and Energy Union. The union represents the employees of Dyno Nobel at the Bajool explosives manufacturing facility in Queensland. The Fair Work Commission was required to determine whether the agreement met the statutory requirements for approval and registration under the Fair Work Act 2009.

The primary legal issue before the Commission was whether the agreement contained provisions that were contrary to the public interest, as outlined in section 234 of the Fair Work Act. This section requires the Commission to consider if any term of the agreement would, if approved, have an adverse effect on the public interest. The Commission also had to consider whether the agreement satisfied the "better off overall test" in section 179 of the Act. This test requires that, on balance, the employees' conditions be no worse off and preferably better off overall under the agreement than they would be under the applicable award or safety net.

The Commission found that the agreement did not contain any provisions contrary to the public interest. It also found that the agreement satisfied the better off overall test, as employees would be better off overall due to the enhanced pay rates, leave entitlements, and other benefits provided by the agreement. The Commission approved the agreement and registered it as a registered agreement under the Fair Work Act. The approval ensures that the terms and conditions of employment for Dyno Nobel's employees at the Bajool facility are governed by the agreement rather than the applicable award.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established