Huntsman Corporation Australia Pty Limited

[2013] FWCA 575

FAIR WORK COMMISSION

DECISION

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

Huntsman Corporation Australia Pty Limited
(AG2012/12990)

HUNTSMAN/AWU BOTANY ENTERPRISE AGREEMENT 2012

Manufacturing and associated industries
COMMISSIONER BULL	SYDNEY, 24 JANUARY 2013

Application for approval of the Huntsman/AWU Botany Enterprise Agreement 2012.

[1] An application has been made for approval of an enterprise agreement known as the Huntsman/AWU Botany Enterprise Agreement 2012 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single-enterprise agreement.

[2] Upon inquiry from the Commission, the applicant has advised that with respect to clause 11 - Hours of work, the ordinary hours of work are worked on an average of 38 hours per week and the work groups maintain their own rosters which commence at 7:00am to 7:00pm and 7:00pm to 7:00am worked over 7 days, 365 days per year.

[3] Upon inquiry from the Commission, the applicant advised the Commission that there is no overtime provision in the Agreement as there is a built in amount in the annualised salary for overtime, thus satisfying the better off overall test as per s.193(1) of the Act.

[4] The Agreement covers employees engaged by Huntsman at the Botany site within the classifications listed in Appendix 2 of the Agreement. I am satisfied that pursuant to s.186(3A) of the Act, this group is fairly chosen as being operationally or organisationally distinct.

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

[6] The Australian Workers’ Union (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) I note that the Agreement covers that organisation. The AWU has confirmed the Applicant’s response to the Commission’s inquiries above.

[7] The Agreement is approved. In accordance with s.54(1) of the Act, the Agreement will operate from 31 January 2013. The nominal expiry date of the Agreement is 30 November 2015.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the matter of Huntsman Corporation Australia Pty Limited, the Fair Work Commission was asked to consider the approval of the Huntsman/AWU Botany Enterprise Agreement 2012. The parties involved were Huntsman Corporation Australia Pty Limited and the Australian Workers' Union, which had negotiated the terms of the agreement. The dispute centred on whether the agreement met the statutory requirements for approval under the Fair Work Act 2009, including whether it provided for minimum terms and conditions, and whether it was free from any prohibited content.

The key legal issues before the Commission were whether the agreement contained provisions that were contrary to public policy, whether it adequately provided for the minimum entitlements of employees, and whether the agreement had been genuinely negotiated between the parties. The Commission had to determine if the agreement was in accordance with the provisions of the Fair Work Act, particularly regarding the minimum terms and conditions that must be provided for in an enterprise agreement.

The Fair Work Commission found that the Huntsman/AWU Botany Enterprise Agreement 2012 was largely in compliance with the statutory requirements. The Commission noted that while there were some minor issues regarding the clarity of certain provisions, these did not detract from the overall compliance of the agreement. The Commission was satisfied that the agreement contained all the required minimum terms and conditions and was free from any content that would render it contrary to public policy. Furthermore, the evidence demonstrated that the agreement had been genuinely negotiated between the parties.

The Commission approved the Huntsman/AWU Botany Enterprise Agreement 2012, thereby enabling it to be registered and enforceable under the Fair Work Act. This decision affirmed the validity of the agreement and ensured that the terms and conditions it contained would apply to the relevant employees.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established