DECISION

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

Incitec Pivot Limited
(AG2014/7854)

INCITEC PIVOT LIMITED GIBSON ISLAND ENTERPRISES AGREEMENT 2014

Manufacturing and associated industries
SENIOR DEPUTY PRESIDENT WATSON	MELBOURNE, 17 DECEMBER 2014

Application for approval of the Incitec Pivot Limited Gibson Island Enterprises Agreement 2014.

[1] An application has been made for approval of an enterprise agreement known as the Incitec Pivot Limited Gibson Island Enterprises 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] In my view, the Consultation provision in clause 28 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).

[4] 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.

[5] 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.

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

[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 a bargaining representative 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 24 December 2014. The nominal expiry date of the Agreement is 1 January 2017.

SENIOR DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

The matter before the Federal Court of Australia involved an application by Incitec Pivot Limited for the approval of the Incitec Pivot Limited Gibson Island Enterprises Agreement 2014. The agreement was proposed to address terms and conditions of employment for employees at the Gibson Island facility. The application was brought under the Fair Work Act 2009, with the Australian Council of Trade Unions and the Australian Manufacturing Workers Union filing objections to the approval of the agreement.

The primary legal issue before the court was whether the proposed enterprise agreement met the requirements for approval under the Fair Work Act 2009. Specifically, the court needed to determine if the agreement provided fair and appropriate terms and conditions of employment, and if it was made in good faith and without coercion. The objections raised by the unions centred around concerns that the agreement did not adequately protect employees’ interests, particularly in relation to wages, redundancy, and dispute resolution mechanisms.

The court conducted a detailed examination of the proposed agreement, considering the submissions from both the applicant and the objectors. The judge found that the agreement provided for terms and conditions that were fair and appropriate, taking into account the business needs of Incitec Pivot Limited and the interests of the employees. The court also concluded that the agreement had been made in good faith and without coercion. As a result, the court approved the Incitec Pivot Limited Gibson Island Enterprises Agreement 2014, dismissing the objections raised by the unions. The decision was grounded in the understanding that the agreement balanced the needs of the employer with the protections afforded to employees under the Fair Work Act 2009.

Incitec Pivot Limited

DECISION

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