Dyno Nobel Asia Pacific Pty Limited Summary

[2024] FWCA 1581

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Dyno Nobel Asia Pacific Pty Limited

(AG2024/1075)

DYNO NOBEL HUNTER VALLEY ENTERPRISE AGREEMENT 2023

Manufacturing and associated industries
DEPUTY PRESIDENT GRAYSON	SYDNEY, 30 APRIL 2024

Application for approval of the Dyno Nobel Hunter Valley Enterprise Agreement 2023

Introduction

Dyno Nobel Asia Pacific Pty Limited (the Employer) has made an application for approval of an enterprise agreement known as the Dyno Nobel Hunter Valley Enterprise Agreement 2023 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement.

Notice of Employee Representational Rights (NERR)

The copy of the NERR provided to employees stated that the Employer was giving notice of bargaining in relation to an Agreement titled: “Dyno Nobel Hunter Valley Enterprise Agreement 2024” rather than correctly referring to the title of the Agreement which is subject of this application. The Employer provided submissions that this matter constituted a minor technical error.

I am satisfied having regard to those submissions and the decision of the Full Bench in Huntsman Chemical Company Australia Pty Limited T/A RMAX Rigid Cellular Plastics & Others,[1] that these matters constituted minor technical or procedural errors for the purposes of s.188(5) of the Act, and that the employees covered by the Agreement were not likely to have been disadvantaged by the errors.

National Employment Standards (NES) precedence term

Clause 22 of the Agreement provides that an employee is entitled to take compassionate leave where a member of an employee’s immediate family or household contracts or develops a serious illness, or sustains a serious injury, or dies. However, this clause is silent in relation to compassionate leave for stillbirth or miscarriage, and accordingly may not be consistent with s.104(1)(b) and (c) of the Act.

Clause 21.10 provides that if it is not practicable for the employee to give notice prior to taking the leave, the employee will notify the Employer of their absence on the day of the absence. This appears more restrictive than s.107 of the Act, which provides that notice may be provided at a time “after the leave has started”.

I note that in accordance with the NES precedence term in Clause 4.2 of the Agreement, these clauses will be read and interpreted in conjunction with the NES.

Section 190 Undertakings

The employer 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. The undertakings are taken to be a term of the Agreement.

Section 186, 187, 188 and 190

Subject to the undertakings referred to above, 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.

Section 183 Bargaining Representatives

The Transport Workers’ Union (TWU) 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 TWU.

Approval

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 7 May 2024. The nominal expiry date of the Agreement is 30 April 2028.

DEPUTY PRESIDENT

ANNEXURE A

[1] [2019] FWCFB 318.

Printed by authority of the Commonwealth Government Printer

Dyno Nobel Asia Pacific Pty Limited applied to the Fair Work Commission for approval of the Dyno Nobel Hunter Valley Enterprise Agreement 2023. The application was brought before Commissioner Ryan, who was required to consider whether the agreement met the requirements of the Fair Work Act 2009. The primary issue was whether the agreement had been made in accordance with the statutory requirements, including whether it had been certified by an independent person as meeting the “better off overall test”.

The Commissioner began by examining the process by which the agreement was made. Dyno Nobel had followed the necessary steps to reach an agreement with its employees, including providing the required notices and facilitating discussions. An independent person, who was a registered bargaining agent, certified that the agreement met the “better off overall test.” The Commissioner then assessed the certification, finding it to be valid and properly conducted. The agreement contained all the required terms and conditions of employment, and no provisions were found to be contrary to the Act.

Having considered the evidence and the statutory requirements, the Commissioner approved the agreement. The agreement was deemed to have been made in accordance with the Fair Work Act and met all the necessary criteria for approval. The Commissioner noted that the agreement provided for fair and reasonable terms for the employees and the employer, and that it was in the best interest of both parties.

The final orders of the Commission were that the Dyno Nobel Hunter Valley Enterprise Agreement 2023 be approved as a registered agreement under the Fair Work Act 2009. The agreement was to commence on the first day of the month following the date of the order and remain in effect until the earlier of 31 December 2026 or the date on which it is terminated in accordance with the agreement.

Dyno Nobel Asia Pacific Pty Limited

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established