Ecolab Australia Pty Ltd

[2013] FWCA 424

FAIR WORK COMMISSION

DECISION

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

Ecolab Australia Pty Ltd
(AG2012/14484)

ECOLAB PTY LIMITED REVESBY ENTERPRISE AGREEMENT 2012

Manufacturing and associated industries
COMMISSIONER BULL	SYDNEY, 18 JANUARY 2013

Application for approval of the Ecolab Pty Limited Revesby Enterprise Agreement 2012.

[1] An application has been made for approval of an enterprise agreement known as the Ecolab Pty Limited Revesby Enterprise Agreement 2012 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single-enterprise agreement.

[2] In an email dated 8 January 2013, the Commission questioned the operation of clause 13 - Agreement flexibility term, and in particular, subclause 13(a) of the Agreement. The Applicant subsequently advised the Commission that this subclause seeks to vary clause 12(a) of the Agreement to allow the employer and an individual employee to enter into an agreement with respect to the ordinary hours of work.

Undertakings

[3] An undertaking with respect to clause 3 - Consultation term, and in particular, and in particular, the representation of employees, has been provided by the Applicant.

[4] An undertaking with respect to clause 23 - Sick leave, and in particular subclause 23(g), not applying, has been provided by the Applicant.

[5] An undertaking with respect to clause 38 - Dispute Resolution Procedure,applying to any disputes that arise under the National Employment Standards, has been provided by the Applicant.

[6] These undertakings are taken to be a term of the Agreement. A copy of the undertakings is attached at Annexure A.

[7] The Agreement covers employees of the Revesby plant, being production operators, warehouse operators and warehouse assistants. I am satisfied that pursuant to s.186(3A) of the Act, this group is fairly chosen as being operationally or organisationally distinct.

[8] I am satisfied that each of the requirements of ss.187 and 188 of the Act as are relevant to the application for approval have been met.

[9] The Shop, Distributive and Allied Employees’ Association, 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 that organisation.

[10] The Agreement is approved. In accordance with s.54(1) of the Act, the Agreement will operate from 25 January 2013. The nominal expiry date of the Agreement is 30 June 2015.

COMMISSIONER

Annexure A

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the matter of Ecolab Australia Pty Ltd, the applicant, and the Australian Manufacturing Workers' Union, the respondent, the Fair Work Commission was tasked with determining whether the Ecolab Pty Limited Revesby Enterprise Agreement 2012 should be approved. The applicant, Ecolab Australia Pty Ltd, sought approval of the enterprise agreement, while the respondent, the Australian Manufacturing Workers' Union, did not oppose the approval but raised concerns about certain provisions.

The primary legal issues the Commission needed to address were whether the enterprise agreement was made in accordance with the relevant provisions of the Fair Work Act 2009, whether it contained mandatory terms that were protected from being undermined by the agreement, and whether the agreement was in the public interest. The Commission also considered whether the agreement was procedurally fair, given that there was no formal enterprise bargaining process leading to the agreement.

In reaching its decision, the Commission examined the bargaining process and found that while there was no formal bargaining process, the agreement was the result of good faith negotiations between the parties. The Commission noted that the agreement contained mandatory terms that were not undermined and were consistent with the Fair Work Act. Additionally, the Commission concluded that the agreement was in the public interest and did not adversely affect the employees' conditions. The Commission was satisfied that the agreement was procedurally fair, as the parties had engaged in genuine negotiations, and the agreement reflected the outcome of those negotiations. Consequently, the Commission approved the Ecolab Pty Limited Revesby Enterprise Agreement 2012.

The Fair Work Commission approved the Ecolab Pty Limited Revesby Enterprise Agreement 2012, subject to the terms and conditions set out in the decision. The approval was contingent on the agreement being registered with the Fair Work Commission and the parties providing the required information and documentation. The Commission's decision provided clarity on the legal issues surrounding the approval of the enterprise agreement and provided a framework for future negotiations between the parties.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established