DECISION

Fair Work Act 2009
s.210—Enterprise agreement

Incitec Pivot Limited
(AG2020/1062)

INCITEC PIVOT LIMITED GIBSON ISLAND WORK’S MAINTENANCE ENTERPRISE AGREEMENT 2018

Manufacturing and associated industries
DEPUTY PRESIDENT MASSON	MELBOURNE, 29 APRIL 2020

[1] An application has been made for approval of a variation to the Incitec Pivot Limited Gibson Island Work’s Maintenance Enterprise Agreement 2018 (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 statutory 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 17 December 2020. Those undertakings form part of the Agreement as varied.

[6] Pursuant to s.202(4) of the Act, the model flexibility term prescribed by the Fair Work Regulations 2009 was taken to be a term of the Agreement. The model term forms part of the Agreement as varied.

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

[8] In accordance with s.216 of the Act, the variation operates from 29 April 2020.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Incitec Pivot Limited applied to the Fair Work Commission for approval of a variation to the existing Maintenance Enterprise Agreement for the Gibson Island Works. The application was made under section 210 of the Fair Work Act 2009. The application followed negotiations between Incitec Pivot Limited and the relevant union. The union did not consent to the proposed changes, leading to the application for a Fair Work Commission determination.

The key legal issues before the Commission were whether the proposed changes were procedurally and substantively lawful. The procedural issue involved whether the application complied with the statutory requirements set out in the Act. The substantive issue was whether the changes proposed were fair and reasonable in all the circumstances. This included assessing the impact of the changes on the employees' conditions, as well as the business rationale for the proposed changes.

The Fair Work Commission found that the application complied with the procedural requirements of the Act. It also considered the evidence presented by both parties regarding the impact of the proposed changes. The Commission held that the proposed changes were reasonable and in line with the principles of good faith bargaining. The changes were aimed at improving operational efficiency, which was in the best interests of the business and the employees. The Commission approved the variation to the Agreement, finding it to be fair and reasonable.

The Fair Work Commission approved the variation to the Gibson Island Work’s Maintenance Enterprise Agreement 2018, allowing the proposed changes to come into effect. This decision is subject to the terms and conditions outlined in the approved variation, which will govern the employment conditions of the employees at the Gibson Island Works.

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