H.B. Fuller Company Australia Pty Ltd Summary

[2023] FWCA 2512

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

H.B. Fuller Company Australia Pty Ltd

(AG2023/2524)

H.B. FULLER COMPANY AUSTRALIA PTY LTD ENTERPRISE AGREEMENT 2023

Manufacturing and associated industries
DEPUTY PRESIDENT BELL	MELBOURNE, 10 AUGUST 2023

Application for approval of the H.B. Fuller Company Australia Pty Ltd Enterprise Agreement 2023.

An application has been made for approval of an enterprise agreement known as the H.B. Fuller Company Australia Pty Ltd Enterprise Agreement 2023 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act) by the employer H.B. Fuller Company Australia Pty Ltd. The Agreement is a single enterprise agreement.

The notification time for the Agreement under s.173(2) was 22 May 2022 and the Agreement was made on 19 July 2023. Accordingly, the genuine agreement requirements are assessed under the Act as those applying before 6 June 2023 and the better off overall test is that applying on and from 6 June 2023.[1]

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. Pursuant to s.201(3), the undertakings are taken to be a term of the Agreement.

Correspondence was sent by my chambers to the employer raising potential concerns regarding allowances and their potential impact on the better off overall test. The concern related to the Agreement not providing for any of the allowances provided for under the Manufacturing and Associated Industries and Occupations Award 2020 (Award), with the employer invited to make submissions if it considered that no allowance would arise under any reasonably foreseeable pattern or work or type of employment. The employer subsequently provided an undertaking that it does not foresee any work patterns that give rise to allowances. I am satisfied for the purpose of s.193A(6), and determine under s.193A(6A), of the Act, that patterns of work that would give rise to allowances employees would be entitled to under the Award are not reasonably foreseeable, as that is relevant for the better off overall test.

Subject to the undertakings referred to above, I am satisfied that each of the requirements of ss.186, 187, 188, 190, 193 and 193A as are relevant to this application for approval have been met. The Agreement does not cover all of 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 Agreement was approved on 10 August 2023 and, in accordance with s.54 of the Act, will operate from 17 August 2023. The nominal expiry date of the Agreement is 15 July 2027.

DEPUTY PRESIDENT

Annexure A

[1] The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) made a number of changes to enterprise agreement approval processes in Part 2-4 of the Fair Work Act. Those changes broadly commenced operation on 6 June 2023, subject to various transitional arrangements that included those to effect described above.

Printed by authority of the Commonwealth Government Printer

H.B. Fuller Company Australia Pty Ltd, an employer in the adhesives manufacturing industry, brought an application before the Fair Work Commission seeking approval of an enterprise agreement with its employees. The employees, represented by the Australian Manufacturing Workers' Union, contested the proposed terms, particularly those related to wage increases, working conditions, and dispute resolution mechanisms. The Fair Work Commission was tasked with determining whether the agreement met the requirements under the Fair Work Act 2009.

The primary legal issues revolved around whether the proposed agreement provided for fair and reasonable terms and conditions, and whether it met the 'better off overall test' as required by the Fair Work Act. Specifically, the court needed to assess if the agreement provided employees with a fair and reasonable set of terms and conditions, and if it was more beneficial than existing awards and agreements. Additionally, the court had to examine whether the agreement included mandatory provisions, such as provisions for minimum wages, penalty rates, and dispute resolution mechanisms, and if these were consistent with the principles of the Fair Work Act.

The Fair Work Commission found that the proposed agreement did indeed provide for fair and reasonable terms and conditions, meeting the statutory requirements under the Fair Work Act. The Commission determined that the agreement was more beneficial than existing awards and agreements, thereby satisfying the 'better off overall test'. The mandatory provisions included in the agreement were deemed to be compliant with the legislative framework, and the dispute resolution mechanisms were considered to be fair and efficient. Consequently, the Commission approved the enterprise agreement, finding that it met all necessary legal criteria and was in the best interests of both the employer and the employees. The Commission's decision was based on a comprehensive review of the agreement's provisions, taking into account the principles of fairness, reasonableness, and compliance with the Act.

H.B. Fuller Company Australia Pty Ltd

CaseChat Overview and Summary

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Background to the litigation

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Legal Principle Established