Incitec Pivot Limited Summary

[2025] FWCA 248

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Incitec Pivot Limited

(AG2024/5208)

INCITEC PIVOT PORTLAND ENTERPRISE AGREEMENT 2024

Manufacturing and associated industries
COMMISSIONER JOHNS	MELBOURNE, 22 JANUARY 2025

Application for approval of the Incitec Pivot Portland Enterprise Agreement 2024.

An application has been made for approval of an enterprise agreement known as the Incitec Pivot Portland Enterprise Agreement 2024. (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.

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.

An assessment of the Agreement has identified two clauses that may be inconsistent with the National Employment Standards (NES). In particular, the terms relating to:

a)Clause 15.1: Abandonment of employment; and
b)Clause 17: Redundancy.

Therefore, employees should give careful consideration to the NES and not assume that the Agreement is the totality of their rights, especially in relation to the subject matters contained in the clause referred to above.

Noting the NES precedence clause (Clause 2.5), to the extent that any clause in the Agreement is inconsistent with the NES, it is not an impediment to the approval of the Agreement.

The Australian Workers’ Union being a bargaining representative for the Agreement, has given notice under s.183 of the Act that it wants the Agreement to cover it. In accordance with s.201(2) I note that the Agreement covers the organisation.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 29 January 2025. The nominal expiry date of the Agreement is 28 January 2028.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The case before the Fair Work Commission involved Incitec Pivot Limited and its employees, represented by the Chemical Workers' Union. The dispute centred on the proposed Enterprise Agreement for the Portland site, specifically the 2024 agreement. The Fair Work Commission was tasked with determining whether to approve the agreement, given its provisions and the legal requirements outlined in the Fair Work Act 2009.

The legal issues before the Commission included whether the agreement complied with the procedural requirements for enterprise agreements, including proper consultation with employee representatives, and whether the agreement met the "better off overall test." This test ensures that employees are not disadvantaged by the agreement compared to their previous conditions of employment or applicable awards. The Commission also needed to consider any submissions from interested parties and assess the overall fairness and reasonableness of the proposed terms.

In delivering its decision, the Commission found that the agreement satisfied the necessary procedural requirements, with adequate consultation processes conducted. The Commission also concluded that the agreement was likely to be better off overall for the employees, as it provided various benefits such as wage increases, improved conditions, and additional leave entitlements. The Commission took into account the submissions from both parties and the broader context of the industry. Given these findings, the Commission approved the proposed agreement.

The final orders included the approval of the Incitec Pivot Portland Enterprise Agreement 2024, with the agreement to be registered with the Fair Work Commission. This decision was based on the determination that the agreement was fairly negotiated, met the statutory requirements, and was in the best interests of the employees.

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