Hexion Pty Ltd

[2020] FWCA 3391

[2020] FWCA 3391

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement

Hexion Pty Ltd
(AG2020/1504)

HEXION (BRISBANE) ENTERPRISE AGREEMENT 2020

Manufacturing and associated industries
DEPUTY PRESIDENT LAKE	BRISBANE, 29 JUNE 2020

Application for approval of the Hexion (Brisbane) Enterprise Agreement 2020.

[1] An application has been made for approval of an enterprise agreement known as the Hexion (Brisbane) Enterprise Agreement 2020 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Hexion Pty Ltd (the Applicant). The Agreement is a single enterprise agreement.

[2] Mr Stephen Baker, Queensland Branch Secretary for The Australian Workers’ Union (the AWU), lodged a Form F18 statutory declaration advising the Commission the AWU supported approval of the Agreement and giving notice under s.183 of the Act that the AWU wants the Agreement to cover it.

[3] On 15 June 2020 I sent email correspondence to the parties raising concerns with the Agreement. On 17 June 2020 the Applicant provided a response to these concerns and proposed undertakings. These were also sent to the AWU who were invited to provide a response to the Applicant’s undertakings and responses. The AWU did not provide a response.

[4] Subject to matters that have been addressed by way of undertakings, I am satisfied that each of the requirements of ss.186, 187 and 188 of the Act as are relevant to this application for approval have been met.

[5]   I observe that the following provisions are likely to be inconsistent with the National Employment Standards (NES):

● Personal/carer’s leave - Clause 17;
● Long Service Leave - Clause 19;
● Abandonment of Employment - Clause 24.

[6] However, noting the NES precedence clause at clause 6 of the Agreement, I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

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

[8] I note that Clause 21.3(b) allows for an unlawful deduction contrary to ss.324-326 of the Act and as such would be unenforceable to the extent of the unlawful deduction.

[9] As noted, pursuant to s.190(3), I have accepted undertakings from the employer. In accordance with ss.191(1) and 201(3) of the Act the undertakings are taken to be a term of the Agreement. A copy of the undertakings is attached to the Agreement and as Annexure A to this Decision.

[10] The AWU, 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 the AWU.

[11] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 6 July 2020. The nominal expiry date of the Agreement is 31 March 2024.

DEPUTY PRESIDENT

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Annexure A.