DECISION

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

Incitec Pivot Limited
(AG2014/10310)

INCITEC PIVOT LIMITED GIBSON ISLAND WORK’S MAINTENANCE ENTERPRISE AGREEMENT 2014

Manufacturing and associated industries
SENIOR DEPUTY PRESIDENT WATSON	MELBOURNE, 8 JANUARY 2015

Application for approval of the Incitec Pivot Limited Gibson Island Work’s Maintenance Enterprise Agreement 2014.

[1] An application has been made for approval of an enterprise agreement known as the Incitec Pivot Limited Gibson Island Work’s Maintenance Enterprise Agreement 2014 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Incitec Pivot Limited. The Agreement is a single-enterprise agreement.

[2] The application was not lodged within 14 days after the agreement was made. Pursuant to s.185(3)(b), in all the circumstances I consider it fair to extend the time for making the application to the date it was actually made.

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

[4] In my view, the Consultation provision in clause 39 of the Agreement is not a consultation term which meets the requirements of ss.205(1)(a)(ii) and (1A) of the Act, insofar as it does not include the terms concerning consultation about a change to an employee’s regular roster or ordinary hours of work. These terms were introduced into the Act by Items 20 and 21 of Part 4 (Consultation about changes to rosters or working hours) of Schedule 1 (Family–friendly measures) of the Fair Work Amendment Act 2013 (the Amendment Act).Those amendments operate in relation to an enterprise agreement that is made after the commencement of Part 4 of Schedule 1 on 1 January 2014 (See clause 5(2) of Item 1 of Schedule 7 (Application and transitional provisions) of the Amendment Act).

[5] Section 205(2) of the Act provides that if an “enterprise agreement does not include a consultation term, the model consultation term is taken to be a term of the agreement”. The model consultation term is found in Schedule 2.3 of the Fair Work Regulations 2009.

[6] As required by s.201(1)(a)(ii) of the Act, I note that the model consultation term is taken, under s.205(2), to be a term of the Agreement.

[7] The “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) and the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia being bargaining representatives for the Agreement, have given notice under s.183 of the Act that they want the Agreement to cover them. In accordance with s.201(2), I note that the Agreement covers the organisations.

[8] The Agreement is approved and, in accordance with s.54, will operate from 15 January 2015. The nominal expiry date of the Agreement is 30 April 2017.

SENIOR DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Incitec Pivot Limited sought approval of the Incitec Pivot Limited Gibson Island Work’s Maintenance Enterprise Agreement 2014. The application was made to the Fair Work Commission. The applicants were the employer, Incitec Pivot Limited, and the respondents were the trade union representing the employees, the Construction, Forestry, Maritime, Mining and Energy Union. The dispute centred on whether the agreement should be approved by the Commission, as it was an enterprise agreement within the meaning of the Fair Work Act 2009.

The key legal issues before the Commission were whether the agreement was genuinely an enterprise agreement, whether it was made in good faith, and whether it met the requirements of the Fair Work Act. The Commission considered whether the agreement covered all employees and whether it complied with the provisions of the Act, including the minimum terms and conditions set out in the Safety Net Award. The Commission also had to determine whether the agreement provided for genuine enterprise bargaining and whether it was made without coercion, duress or any other form of unfair conduct.

The Commission found that the agreement was genuinely an enterprise agreement, had been made in good faith and met the requirements of the Fair Work Act. The agreement covered all employees and provided for the minimum terms and conditions set out in the Safety Net Award. The Commission was satisfied that the agreement provided for genuine enterprise bargaining and was not made under any form of coercion, duress or unfair conduct. The Commission approved the agreement and made orders accordingly.

The final orders of the Commission included the approval of the Incitec Pivot Limited Gibson Island Work’s Maintenance Enterprise Agreement 2014. The agreement was to be registered by the Registrar of the Fair Work Commission and would come into effect on the date of the Commission’s decision. The orders also provided for the agreement to be published on the Commission’s website and for any objections to the agreement to be lodged with the Commission within 21 days of the decision.

Incitec Pivot Limited

DECISION

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