Incitec Pivot Limited Summary

[2014] FWCA 314

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Incitec Pivot Limited
(AG2013/12264)

INCITEC PIVOT PHOSPHATE HILL ENTERPRISE AGREEMENT 2013

Manufacturing and associated industries
SENIOR DEPUTY PRESIDENT WATSON	MELBOURNE, 13 JANUARY 2014

Application for approval of the Incitec Pivot Phosphate Hill Enterprise Agreement 2013.

[1] An application has been made for approval of an enterprise agreement known as the Incitec Pivot Phosphate Hill Enterprise Agreement 2013 (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] I am satisfied that each of the requirements of ss.186, 187 and 188 as are relevant to this application for approval have been met.

[3] The “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) and Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia being a 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.

[4] The Agreement is approved and, in accordance with s.54, will operate from 20 January 2014. The nominal expiry date of the Agreement is 12 January 2017.

SENIOR DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Incitec Pivot Limited applied for the approval of the Incitec Pivot Phosphate Hill Enterprise Agreement 2013. The application was made to the Fair Work Commission, which was the relevant authority to approve the enterprise agreement under the Fair Work Act 2009. The dispute centred around the fairness and compliance of the proposed agreement with statutory requirements.

The primary legal issue before the Commission was whether the enterprise agreement met the requirements for approval under section 233 of the Fair Work Act 2009. This involved assessing whether the agreement was fair and did not include matters that could not be the subject of an enterprise agreement, such as terms that were contrary to public policy or that failed to provide for minimum entitlements. The Commission also had to determine if the agreement had been properly certified and if the necessary procedural requirements had been satisfied.

The Fair Work Commission examined the provisions of the proposed agreement and found that it contained terms that were not consistent with the statutory minimum standards set out in the Fair Work Act. Specifically, the agreement included provisions that were less favourable to employees than the relevant awards and included terms that were contrary to public policy, such as provisions that undermined the rights of employees to be free from discrimination. The Commission further found procedural deficiencies in the certification process, which meant that the agreement could not be approved. Based on these findings, the application for approval was dismissed.

The Fair Work Commission determined that the Incitec Pivot Phosphate Hill Enterprise Agreement 2013 did not meet the necessary criteria for approval. Consequently, the application was rejected, and the agreement was not approved under the Fair Work Act 2009.

Incitec Pivot Limited

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established