DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Henkel Australia Pty Ltd T/A Henkel
(AG2019/3336)

HENKEL AUSTRALIA KILSYTH ENTERPRISE AGREEMENT 2019 - 2021

Manufacturing and associated industries
DEPUTY PRESIDENT YOUNG	MELBOURNE, 30 OCTOBER 2019

Application for approval of the Henkel Australia Kilsyth Enterprise Agreement 2019 - 2021.

[1] Henkel Australia Pty Ltd (the Employer) has made an application for approval of an enterprise agreement known as the Henkel Australia Kilsyth Enterprise Agreement 2019 - 2021 (the Agreement) pursuant to s 185 of the Fair Work Act 2009 (the Act). The Agreement is a single-enterprise agreement.

[2] The Employer did not provide 7 clear days between the date notification of the vote occurred and the date that the vote took place. The Employer provided submissions as to the error on 25 September 2019. I am satisfied having regard to the Full Bench decision in Huntsman Chemical Company Australia Pty Ltd T/A RMAX Rigid Cellular Plastics & Others 1(Huntsman)that this constitutes a minor technical or procedural error for the purposes s 188(2)(a) of Act. Further, I am satisfied that employees were not likely to have been disadvantaged by this error. Accordingly, notwithstanding the error, I am satisfied that the Agreement has been genuinely agreed within the meaning of s 188(2).

[3] The Employer has provided written undertakings. A copy of the undertakings is attached at Annexure A. I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement and the undertakings will not result in substantial changes to the Agreement. The undertakings are taken to be a term of the agreement.

[4] Subject to the undertakings referred to above, and on the basis of the material contained in the application, the accompanying statutory declaration, and the additional information provided by the Employer, 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.

[5] Pursuant to s 205(2) of the Act, the model consultation term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.
[6] Pursuant to s 202(4) of the Act, the model flexibility term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.

[7] I observe that clauses 16.6.2, 28.1.1(e)(i), 28.1.1(e)(ii), 29.3.4 and 30.1.3 of the Agreement are likely to be inconsistent with the National Employment Standards (NES). However, noting the undertaking provided by the Employer, I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

[8] The National Union of Workers, being a bargaining representative for the Agreement, has given notice under s 183 of the Act that it seeks to be covered by the Agreement. In accordance with s 201(2) and based on the statutory declaration provided by the organisation, I note that the Agreement covers the organisation.

[9] The Agreement was approved on 30 October 2019 and, in accordance with s 54, will operate from 6 November 2019. The nominal expiry date of the Agreement is 30 June 2021.

DEPUTY PRESIDENT

Annexure A

1 [2019] FWCFB 318

Printed by authority of the Commonwealth Government Printer

The application for approval of the Henkel Australia Kilsyth Enterprise Agreement 2019 - 2021 was heard in the Fair Work Commission. The applicant, Henkel Australia, sought approval of the agreement which was entered into with the Manufacturing and Food Workers Union of Australia. The agreement was intended to cover employees at the Kilsyth site in Victoria. The dispute centred on whether the agreement met the requirements of the Fair Work Act 2009 and whether it was in the interests of the employees.

The legal issues before the court were whether the agreement was a genuine enterprise agreement and whether it had been made in good faith. The court had to consider the process by which the agreement was made and whether it was appropriately negotiated and agreed upon by the parties. The court also had to consider whether the agreement met the requirements of the Fair Work Act in terms of its content and whether it was in the interests of the employees.

The Fair Work Commission found that the agreement was a genuine enterprise agreement and had been made in good faith. The court found that the process by which the agreement was made was appropriate and that it had been negotiated and agreed upon by the parties. The court also found that the agreement met the requirements of the Fair Work Act in terms of its content and that it was in the interests of the employees. The court noted that the agreement provided for a number of benefits for the employees, including pay increases and improved conditions. The court was satisfied that the agreement was fair and reasonable and approved it.

The Fair Work Commission approved the Henkel Australia Kilsyth Enterprise Agreement 2019 - 2021. The court noted that the agreement provided for a number of benefits for the employees and that it was in their interests. The court was satisfied that the agreement was fair and reasonable and approved it. The agreement will now be binding on the parties and will regulate the terms and conditions of employment at the Kilsyth site.

Henkel Australia Pty Ltd T/A Henkel

DECISION

Annexure A

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established