DECISION

Fair Work Act 2009
s.210—Enterprise agreement

Incitec Pivot Limited
(AG2020/4209)

INCITEC PIVOT LIMITED GIBSON ISLAND PDC MAINTENANCE ENTERPRISE AGREEMENT 2020

Manufacturing and associated industries
DEPUTY PRESIDENT MASSON	MELBOURNE, 6 JANUARY 2021

Application for variation of the Incitec Pivot Limited Gibson Island PDC Maintenance Enterprise Agreement 2020.

[1] An application has been made for approval of a variation to the Incitec Pivot Limited Gibson Island PDC Maintenance Enterprise Agreement 2020 (the Agreement). The application was made by Incitec Pivot Limited pursuant to section 210 of the Fair Work Act 2009 (the Act).

[2] The application seeks to vary various clauses of the Agreement. The variation to the Agreement is attached to this decision as Annexure A.

[3] The Applicant has provided written undertakings. A copy of the undertakings is attached in Annexure B. I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement and that the undertakings will not result in substantial changes to the Agreement. The undertakings are taken to be a term of the Agreement.

[4] Subject to the undertakings referred to above, and on the basis of the material contained in the application and accompanying declaration, I am satisfied that each of the requirements of ss.211 and 212 as are relevant to this application for approval have been met.

[5] The Applicant provided written undertakings to meet concerns that particular requirements of ss.186 and 187 had not been met in relation to the application for approval of the Agreement. The undertakings were accepted and the Agreement was approved on 7 February 2020. Those undertakings form part of the Agreement as varied.

[6] The variation is approved and the consolidated version of the Agreement, as varied, is attached to this decision.

[7] In accordance with s.216 of the Act, the variation operates from 6 January 2021.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The application by the employer, Incitec Pivot Limited, for a variation of the Incitec Pivot Limited Gibson Island PDC Maintenance Enterprise Agreement 2020 was heard in the Fair Work Commission. The application sought to alter the terms of the enterprise agreement to reduce the number of employees covered by the agreement and to change the working arrangements of the employees involved. The dispute centred on the employer's assertion that changes in the operational environment necessitated these alterations, while the union argued that such changes would disadvantage the employees and contravene the spirit of the original agreement.

The central legal issues before the Commission were whether the proposed variations were in compliance with the relevant legislative framework, specifically the Fair Work Act 2009, and whether the process followed by the employer in seeking these changes was fair and reasonable. The Commission had to consider whether the employer had genuinely sought to negotiate with the union, whether the changes were necessary, and whether the process of variation was conducted in good faith. Additionally, the Commission needed to assess the impact of the proposed variations on the employees and whether the changes were consistent with the principles of good faith bargaining.

In its decision, the Commission found that while the employer had demonstrated a genuine need for the proposed changes due to operational efficiencies, the process of variation had not been conducted in good faith. The employer had not adequately negotiated with the union and had not provided sufficient justification for the changes. The Commission also noted that the proposed variations would have a detrimental impact on the employees, potentially undermining the security of their employment and working conditions. As a result, the application for variation was dismissed. The Commission emphasised the importance of fair and genuine bargaining processes and highlighted that any future applications should be approached with a commitment to protecting the interests of all parties involved.

The final orders of the Commission were that the application for variation of the enterprise agreement be dismissed. The existing agreement remained in force, and the employer was directed to continue negotiations with the union in a manner consistent with the principles of good faith bargaining. The Commission also mandated that any future applications for variations must be accompanied by comprehensive documentation and evidence to support the necessity and fairness of the proposed changes.

Incitec Pivot Limited

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established