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

Printed by authority of the Commonwealth Government Printer

Annexure A.

Hexion Pty Ltd was the subject of an application before the Fair Work Commission for approval of the Hexion (Brisbane) Enterprise Agreement 2020. The applicant, Hexion Pty Ltd, sought the Commission's approval of the enterprise agreement, which had been negotiated with its employees. The legal issues before the Commission were whether the agreement met the statutory requirements for approval and if it complied with the relevant provisions of the Fair Work Act 2009. Specifically, the Commission needed to determine if the agreement was certified as a bargain in good faith and if it contained the minimum terms and conditions of employment as required by law.

The Commission found that the enterprise agreement had been certified by the Australian Building and Construction Commission as a genuine agreement, meeting the requirements of the Fair Work Act. It further considered whether the agreement complied with the procedural and substantive fairness requirements. The Commission examined the agreement's provisions, including the terms and conditions of employment, the classification of employees, and the dispute resolution mechanisms. Ultimately, the Commission concluded that the agreement met the statutory requirements and was approved.

The Fair Work Commission approved the Hexion (Brisbane) Enterprise Agreement 2020, finding it met the necessary statutory requirements and was certified as a genuine agreement. The Commission's decision was based on the procedural and substantive fairness of the agreement, including the terms and conditions of employment, employee classification, and dispute resolution mechanisms. The Commission found that the agreement complied with the relevant provisions of the Fair Work Act and was therefore approved.

Hexion Pty Ltd

DECISION

CaseChat Overview and Summary

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Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established