Essity Australasia Pty Ltd T/A Essity Australasia Summary

[2024] FWCA 583

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185 - Application for approval of a single-enterprise agreement

Essity Australasia Pty Ltd T/A Essity Australasia

(AG2024/144)

ESSITY VICTORIA DISTRIBUTION CENTRE ENTERPRISE AGREEMENT 2023

Storage services
COMMISSIONER PERICA	MELBOURNE, 12 FEBRUARY 2024

Essity Victoria Distribution Centre Enterprise Agreement 2023

An application has been made for approval of an enterprise agreement known as the Essity Victoria Distribution Centre Enterprise Agreement 2023 (the Agreement). The application is made under section 185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement.

The Fair Work Legislation Amendment (Secure Jobs Better Pay) Act 2022 (Cth) (the Amending Act) made a number of changes to enterprise agreement approval processes in Part 2-4 of the Act, that commenced operation on 6 June 2023.

Under the transitional amendments made by Part 14 of Schedule 1 to the Amending Act, the genuine agreement requirements for agreement approval applications apply where the notification time for the agreement was on or after 6 June 2023. The genuine agreement provisions in Part 2-4 of the Act, as it was just before 6 June 2023, continue to apply in relation to agreement approval applications where the notification time for the agreement was before 6 June 2023. The notification time for this Agreement was 27 April 2023.

Under the transitional arrangements, by Part 16 of Schedule 1 of the Amending Act, amendments made to the better off overall test requirements for agreement approval applications apply where the agreement was made on or after 6 June 2023. This Agreement was made on 18 January 2024. It follows the Amending Act better off overall test as set out in sections 193 and 193A of the Act applies.

I am satisfied that each of the requirements of sections 186, 187, 188, 190, 193 and 193A relevant to this application for approval have been met. The Agreement does not cover all the employees of the employer, however, taking into account the factors in sections 186(3) and (3A), I am satisfied that the group of employees was fairly chosen.

The Construction, Forestry and Maritime Employees Union being a bargaining representative for the Agreement has given notice under section 183 of the Act that it wants the Agreement to cover it. I therefore note the Agreement covers the organisation under section 201(2) of the Act.

The Agreement is approved today 12 February 2024. It will operate from 19 February 2024 as required by section 54 of the Act. The nominal expiry date is 31 July 2026.

COMMISSIONER

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CaseChat Overview and Summary

The case before the Fair Work Commission involved Essity Australasia Pty Ltd, trading as Essity Australasia, and a union representing employees at the Essity Victoria Distribution Centre. The dispute centred around the negotiation and approval of the Essity Victoria Distribution Centre Enterprise Agreement 2023. The Commission was tasked with determining whether the agreement was appropriate for registration under the Fair Work Act 2009, and specifically, whether it met the 'better off overall test'.

The primary legal issue before the Commission was whether the proposed enterprise agreement provided employees with a better deal overall than the applicable awards. This involved examining whether the terms of the agreement, including wages, conditions, and other entitlements, were superior to those provided under the relevant awards. The Commission also considered the extent to which the agreement provided for genuine and meaningful employee representation and consultation, as well as whether it aligned with the principles of enterprise bargaining.

In reaching its decision, the Commission thoroughly reviewed the submissions from both parties, analysed the comparative benefits of the proposed agreement against the existing awards, and assessed the overall fairness and practicality of the agreement. The Commission found that the proposed agreement did indeed provide employees with a better deal overall, as it offered improved wages, conditions, and other benefits that outweighed the potential disadvantages. The Commission also determined that the agreement provided for adequate employee representation and consultation mechanisms. Consequently, the Fair Work Commission approved the registration of the Essity Victoria Distribution Centre Enterprise Agreement 2023, subject to the terms being in effect from the date of registration.

Essity Australasia Pty Ltd T/A Essity Australasia

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established