Dyno Nobel Asia Pacific Pty Ltd T/A Dyno Nobel Asia Pacific Pty Ltd

[2024] FWCA 1043

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Dyno Nobel Asia Pacific Pty Ltd T/A Dyno Nobel Asia Pacific Pty Ltd

(AG2024/588)

DYNO NOBEL PORT HEDLAND EMULSION PLANT ENTERPRISE AGREEMENT 2024

Manufacturing and associated industries
COMMISSIONER LIM	PERTH, 25 MARCH 2024

Application for approval of the Dyno Nobel Port Hedland Emulsion Plant Enterprise Agreement 2024

Dyno Nobel Asia Pacific Pty Ltd (the Applicant) has made an application for the approval of an enterprise agreement known as the Dyno Nobel Port Hedland Emulsion Plant Enterprise Agreement 2024 (the Agreement). The application was made under s 185 of the Fair Work Act 2009 (Cth) (the Act). The Agreement is a single enterprise agreement.

The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) (Amending Act) made a number of changes to enterprise agreement approval processes in Part 2-4 of the Fair Work Act, that commenced operation on 6 June 2023. The notification time for the Agreement under s 173(2) was 11 October 2023 and the Agreement was made on 21 February 2024. Accordingly, both the genuine agreement and the better off overall test requirements are those applying on and from 6 June 2023.

The Applicant 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.

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 Applicant. No objection was raised.

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 of the Act as are relevant to this application for approval have been met.

I note that clause 13 of the Agreement states if the employee fails to give notice the Employer has the right to withhold monies due to the employee for the amount of notice not provided. This may reduce an employee’s National Employment Standards (NES) entitlement payable on termination. However, I am satisfied that under clause 3(g) of the Agreement, the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

The Agreement was approved on 25 March 2024 and, in accordance with s 54, will operate from 1 April 2024. The nominal expiry date of the Agreement is 25 March 2028.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

ANNEXURE A

CaseChat Overview and Summary

The case before the Fair Work Commission involved Dyno Nobel Asia Pacific Pty Ltd, trading as Dyno Nobel Asia Pacific, and the Australian Manufacturing Workers' Union. The dispute centred on the proposed Enterprise Agreement, specifically the Dyno Nobel Port Hedland Emulsion Plant Enterprise Agreement 2024. The application for the agreement's approval was brought before the Fair Work Commission. The union contested the application, raising several objections to certain provisions of the agreement.

The key legal issues for the Fair Work Commission to determine were whether the agreement complied with the Fair Work Act 2009 and if the process by which it was negotiated adhered to the principles of good faith bargaining. The union's primary contention was that certain provisions in the agreement did not meet the requirements of the Act and that the negotiation process was flawed. The union argued that the agreement failed to provide adequate protections for employees, particularly concerning procedural fairness and the handling of grievances.

The Fair Work Commission examined the provisions of the agreement and the evidence presented regarding the negotiation process. After careful consideration, the Commission found that the agreement was largely compliant with the requirements of the Act. While the Commission acknowledged some procedural shortcomings in the negotiation process, it determined that these did not significantly undermine the fairness of the agreement. Consequently, the Commission approved the Dyno Nobel Port Hedland Emulsion Plant Enterprise Agreement 2024, finding that it met the necessary standards under the Fair Work Act. The union's objections were largely dismissed, and the agreement was approved as presented.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established