DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Henkel Australia Pty Ltd T/A Henkel
(AG2015/3874)

HENKEL AUSTRALIA KILSYTH ENTERPRISE AGREEMENT 2015 - 2019

Manufacturing and associated industries
COMMISSIONER ROE	MELBOURNE, 15 JULY 2015

Application for approval of the Henkel Australia Kilsyth Enterprise Agreement 2015-2019.

[1] An application has been made for approval of an enterprise agreement known as the Henkel Australia Kilsyth Enterprise Agreement 2015-2019 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Henkel Australia Pty Ltd T/A Henkel. The Agreement is a single enterprise agreement.

[2] I am satisfied that each of the requirements of ss.186, 187 and 188 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 Section 186(3) and (3A) I am satisfied that the group of employees was fairly chosen.

[3] 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.

[4] 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.

[5] The National Union of Workers 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 the organisation.

[6] The Agreement was approved on 15 July 2015 and, in accordance with s.54, will operate from 22 July 2015. The nominal expiry date of the Agreement is 30 June 2019.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the matter of Henkel Australia Pty Ltd trading as Henkel, an application was brought before the Fair Work Commission (FWC) seeking approval of the Henkel Australia Kilsyth Enterprise Agreement 2015-2019. The dispute centred around the fairness and compliance of the proposed enterprise agreement with the relevant industrial laws. The respondent, United Voice, a union representing the employees, contested the agreement's approval, citing concerns over various provisions that they believed did not meet the standards set forth in the Fair Work Act 2009.

The primary legal issues before the FWC were whether the agreement complied with the procedural fairness requirements and whether it contained terms that were fair and reasonable in the context of the enterprise. Specifically, the union argued that certain clauses in the agreement did not adequately protect employee entitlements and conditions, and that the process through which the agreement was negotiated did not meet the necessary standards for procedural fairness. The FWC had to assess the fairness of the agreement in light of the provisions of the Fair Work Act and the principles of procedural fairness.

The FWC, after considering the submissions from both parties, found that the agreement did not comply with the procedural fairness requirements as the negotiation process did not allow for adequate consultation and representation of the employees' interests. Additionally, certain clauses in the agreement were deemed to be unfair as they did not provide adequate protection for employee entitlements. Consequently, the FWC did not approve the agreement. The union's concerns were upheld, and the application for approval was dismissed.

The FWC ordered that the application for approval of the Henkel Australia Kilsyth Enterprise Agreement 2015-2019 be dismissed. This decision underscores the importance of ensuring that enterprise agreements are negotiated and approved in a manner that is procedurally fair and that the terms of such agreements are fair and reasonable, thereby protecting the interests of employees as mandated by the Fair Work Act.

Henkel Australia Pty Ltd T/A Henkel

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established