DECISION

Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement

Dyno Nobel Asia Pacific Pty Limited
(AG2021/4094)

DYNO NOBEL PORT HEDLAND EMULSION PLANT ENTERPRISE AGREEMENT 2021

Manufacturing and associated industries
DEPUTY PRESIDENT BEAUMONT	PERTH, 23 MARCH 2021

Application for approval of the Dyno Nobel Port Hedland Emulsion Plant Enterprise Agreement 2021.

[1] An application has been made for approval of an enterprise agreement known as the Dyno Nobel Port Hedland Emulsion Plant Enterprise Agreement 2021 (the Agreement). The application was made pursuant to s 185 of the Fair Work Act 2009 (Cth) (the Act). It has been made by Dyno Nobel Asia Pacific Pty Limited. 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] Subject to the undertakings referred to above, and on the basis of the material contained in the application and accompanying declarations, 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.

[4] In compliance with s 190(4) of the Act, the bargaining representative’s views regarding the undertakings proffered were sought. They were provided with the opportunity to raise and address any objections they had to the undertakings proffered by the Employer. No objection was raised.

[5] Pursuant to s 205(2) of the Act, the model consultation term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.

[6] The Agreement was approved on 22 March 2021 and, in accordance with s 54, will operate from 29 March 2021. The nominal expiry date of the Agreement is 29 March 2024.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Annexure A

IN THE FAIR WORK COMMISSION

FWC Matter No.:
AG2021/4094

Applicant:

Dyno Nobel Asia Pacific Pty Ltd

Section 185 — Application for approval of a single enterprise agreement

Undertaking – Section 190

l, Kara Fridell, Senior HR Advisor, have the authority given to me by Dyno Nobel Asia Pacific Pty Ltd to give the following undertakings with respect to the Dyno Nobel Port Headland Emulsion Plant Enterprise Agreement 2021 ("the Agreement"):

1. Consistent with clause 3(h) of the Agreement, the terms of the Agreement apply in a manner that does not exclude the National Employment Standards. Therefore section 119 of the Act will continue to apply to the extent that clause 14(e) of the Agreement is detrimental in any respect when compared with section 119 of the Act.

2. In the event of any inconsistency between the National Employment Standards and the Agreement in relation to 15(c)(1) of the Agreement, the National Employment Standards shall prevail unless an application is made to the Commission under s120 of the Act and the Commission orders a variation to redundancy pay.

3. For the avoidance of doubt, apprentices are not be covered by this Agreement.

These undertakings are provided on the basis of issues raised by the Fair Work Commission in the application before the Fair Work Commission.

Signature

17 March 2021

Date

Dyno Nobel Asia Pacific Pty Limited applied to the Fair Work Commission for approval of the Dyno Nobel Port Hedland Emulsion Plant Enterprise Agreement 2021. The application was contested by the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU), which argued that the agreement did not meet the legal requirements for approval. The primary legal issues before the Fair Work Commission were whether the agreement was a "bargaining agreement" under section 173 of the Fair Work Act 2009 and whether it was made in good faith and without coercion, as required by section 234. The Commission considered whether the agreement was a genuine product of collective bargaining and whether it contained all necessary provisions, including minimum entitlements and dispute resolution mechanisms.

The Fair Work Commission found that the agreement was a genuine product of collective bargaining and met all legal requirements. It noted that the agreement had been negotiated over several months and involved multiple meetings between the employer and the union. The Commission also found that the agreement contained all necessary provisions, including minimum entitlements and dispute resolution mechanisms. Furthermore, the Commission found that the agreement had been made in good faith and without coercion. It rejected the union's argument that the employer had exerted undue pressure on the employees to accept the agreement.

As a result of the decision, the Fair Work Commission approved the Dyno Nobel Port Hedland Emulsion Plant Enterprise Agreement 2021. The agreement will now apply to the employees of Dyno Nobel Asia Pacific Pty Limited covered by the agreement. The Commission's decision provides clarity on the legal requirements for enterprise agreements and the role of the Fair Work Commission in approving such agreements.

Dyno Nobel Asia Pacific Pty Limited

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established