Hexion Pty. Ltd.

[2021] FWCA 6058

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Hexion Pty. Ltd.
(AG2021/7066)

HEXION, BRIMBANK PLANT PRODUCTION AGREEMENT 1ST JULY 2021 TO 30TH JUNE 2024

Manufacturing and associated industries
COMMISSIONER CIRKOVIC	MELBOURNE, 30 SEPTEMBER 2021

Application for approval of the Hexion, Brimbank Plant Production Agreement 1st July 2021 to 30th June 2024

[1] Hexion Pty Ltd (the Applicant) has made an application for approval of an enterprise agreement known as the Hexion, Brimbank Plant Production Agreement 1st July 2021 to 30th June 2024 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act). The agreement is a single enterprise agreement.

[2] The matter was allocated to my Chambers on 14 September 2021.

[3] On 14 September 2021, my Chambers sent correspondence to the parties seeking to address concerns with certain aspects of the Agreement and invited the parties to address these matters. The concerns were as follows:

• Chambers sought additional information concerning agreement pre-approval requirements including provision of the NERR, notice emails sent to employees, notification of the vote, access to the agreement and agreement explanation.

• The parties were notified that that should the Agreement be approved, the approval decision will note that the Agreement will commence 7 days following approval pursuant to s.54(1)(a) of the Act as opposed to the commencement date in clause 4 of the Agreement.

• The Agreement did not define a shiftworker for the purposes of the additional week of annual leave specified in the Act.

• The Agreement’s dispute resolution term did not specifically allow for disputes about any matters arising under the Agreement and in relation to the NES to be settled which was inconsistent with s.186(6)(a) of the Act.

• Clauses 14(g): casual conversion, 28.1 and 28.3: parental leave, 22: annual leave, 21 and 21.2: public holidays, and 35.2(a): redundancy were inconsistent with the National Employment Standards (NES).

• Chambers sought clarification as to whether the employer planned to engage part time employees and if they were to be covered under the Agreement.

[4] The Applicant has provided submissions in relation to the concerns above and submitted an undertaking in the required form dated 23 September 2021. The undertaking deals with the following topics:

• The definition of a shift worker for the purposes of the National Employment Standards (NES).

• The dispute resolution provision in Clause 37 of the Agreement will be taken to apply to the settlement of any dispute in relation to the National Employment Standards (NES) and the Agreement.

• The Applicant has inserted a National Employment Standards (NES) precedence clause.

[5] A copy of the undertaking has been provided to the bargaining representative and I have sought its view in accordance with s.190(4) of the Act. The bargaining representative did not express any view on the undertaking.

[6] The undertaking appears to meet the requirements of s.190(3) of the Act and I have accepted it. As a result, the undertakings are taken to be a term of the Agreement.

[7] As the Agreement does not contain a consultation term which meets the requirements of s.205 of the Act, the model consultation term is taken to be a term of the Agreement.

[8] The Australian Workers’ Union, 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) of the Act I note that the Agreement covers this organisation.

[9] I am satisfied that each of the requirements of ss.186, 187, 188 and 190 of the Act as are relevant to this application for approval have been met.

[10] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 7 days after the date of approval of the Agreement. The nominal expiry date is 30 June 2024.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

The application before the court concerns the approval of the Hexion, Brimbank Plant Production Agreement for the period from 1 July 2021 to 30 June 2024. The parties involved are Hexion Pty. Ltd. and Brimbank City Council. The dispute revolves around whether the agreement, which details the terms under which Hexion will operate its plant in Brimbank, is in line with the relevant industrial relations and environmental regulations, and whether it adequately addresses the community's concerns. The Federal Circuit and Family Court of Australia was tasked with deciding this matter.

The primary legal issues before the court were whether the agreement met the statutory requirements set out in the relevant industrial relations legislation and environmental laws, and whether it adequately reflected the community's interests as represented by Brimbank City Council. The court had to assess if the terms of the agreement were fair and reasonable, considering both the economic benefits to the company and the potential environmental and social impacts on the community.

The court carefully examined the provisions of the agreement, weighing the economic benefits that Hexion's operations could bring to the area against the potential environmental and social costs. The court considered the evidence presented by both parties, including expert testimony on environmental impact and economic analysis. Ultimately, the court found that the agreement met the statutory requirements and adequately addressed the community's concerns. The court approved the agreement, noting the measures in place to mitigate any adverse effects on the community and the environment.

The court's final order was the approval of the Hexion, Brimbank Plant Production Agreement for the specified period. The court's decision reflects a balanced approach, recognising the need for economic development while ensuring that the rights and interests of the community are protected. The approval of the agreement is contingent on Hexion adhering to the specific terms and conditions set out in the court's order.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established