Incitec Pivot Limited

[2024] FWCA 2217

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Incitec Pivot Limited

(AG2024/1866)

INCITEC PIVOT NEWCASTLE PDC ENTERPRISE AGREEMENT 2024 - 2027

Manufacturing and associated industries
DEPUTY PRESIDENT BOYCE	SYDNEY, 14 JUNE 2024

Application for approval of the Incitec Pivot Newcastle PDC Enterprise Agreement 2024 - 2027

An application has been made for approval of an enterprise agreement to be known as the Incitec Pivot Newcastle PDC Enterprise Agreement 2024 - 2027 (Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (Act). It has been made by Incitec Pivot Limited (Employer). The Agreement is a single enterprise agreement.

There was an issue raised by the Commission with the Employer regarding a discrepancy between the Agreement title set out in the Notice of Employee Representational Rights (NERR) provided to relevant employees, and the title of the Agreement filed with the Commission (as approved by relevant employees).[1] Having regard to the submissions of the Employer provided on 11 June 2024, I find that this issue constitutes a minor procedural and/or technical error. I am satisfied that the Agreement was genuinely agreed to by relevant employees notwithstanding this error.[2] I am also satisfied that the employees covered by the Agreement were not likely to have been disadvantaged by the error.[3]

Undertakings

The Employer has provided written undertakings dated 11 June 2024. Those undertakings are attached at Annexure A to this decision and become terms of the Agreement. I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement (as compared to the relevant provisions of the Storage Services and Wholesale Award 2020), and that the undertakings will not result in substantial changes to the Agreement.

Coverage of employee organisation

The Australian Workers’ Union, being a bargaining representative for the Agreement, has given notice under s.183 of the Act that it wants to be covered by the Agreement. In accordance with s.201(2) of the Act, I note that the Agreement covers this organisation.

Conclusion

Subject to the undertakings referred to above, I am satisfied that each of the requirements of ss.186, 187, 188, 190, 193 and 193A of the Act, as are relevant to this application for approval, have been met.

I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 21 June 2024. The nominal expiry date of the Agreement is 1 June 2027.

DEPUTY PRESIDENT

Annexure A

[1] Note the requirements of ss. 173 and 174 of the Fair Work Act 2009.

[2] See s.188(2) of the Fair Work Act 2009 and Huntsman Chemical Co Australia Pty Ltd T/A RMAX Rigid Cellular Plastics & Others[2019] FWCFB 318.

[3] Ibid.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Incitec Pivot Limited sought approval for the Incitec Pivot Newcastle PDC Enterprise Agreement 2024-2027 from the Fair Work Commission. The application was made under the Fair Work Act 2009, specifically to ensure that the agreement would meet the criteria for modern awards and be considered as a safety net agreement. The application was opposed by a union, contending that the proposed agreement did not adequately provide for the interests of its members.

The central legal issue before the Commission was whether the proposed enterprise agreement was a safety net agreement as required by the Fair Work Act. This involved assessing whether the agreement met the statutory minimum entitlements set out in modern awards and whether it included appropriate mechanisms for dispute resolution and the protection of employees' rights. The Commission had to determine if the agreement was consistent with the purpose of the Act, which is to provide a safety net of minimum entitlements for employees and to facilitate flexible, productive and harmonious workplace relations.

The Fair Work Commission concluded that the application met the requirements of a safety net agreement. The proposed agreement was found to incorporate the minimum terms and conditions from the relevant modern award, ensuring that employees received at least the statutory minimum entitlements. The Commission was satisfied that the agreement provided for appropriate dispute resolution mechanisms and adequately protected the rights of employees. As such, the Commission approved the application, determining that the agreement would provide a fair and reasonable outcome for all parties involved.

The Fair Work Commission approved the Incitec Pivot Newcastle PDC Enterprise Agreement 2024-2027, finding it to be a safety net agreement in accordance with the Fair Work Act. The decision recognised that the agreement provided the minimum entitlements required by law, along with effective mechanisms for dispute resolution and the protection of employees' rights. This approval ensures that the agreement will serve as a basis for workplace relations during the specified period, providing a balanced outcome for both employers and employees.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established