DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Ixom Operations Pty Ltd
(AG2018/6616)

IXOM (CHLORALKALI BOTANY) ENTERPRISE AGREEMENT 2018

Manufacturing and associated industries
COMMISSIONER JOHNS	MELBOURNE, 31 MAY 2019

Application for approval of the IXOM (Chloralkali Botany) Enterprise Agreement 2018.

[1] An application has been made for approval of an enterprise agreement known as the IXOM (Chloralkali Botany) Enterprise Agreement 2018 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (Cth) (the Act). It has been made by Ixom Operations Pty Ltd. The Agreement is a single enterprise agreement.

[2] The Employer has provided written undertakings. A copy of the undertakings is attached in Annexure A. 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.

[3] Subject to the undertakings referred to above, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 as are relevant to this application for approval have been met.

[4] On 11 January 2019, The Australian Workers’ Union (AWU) filed a copy of the Agreement’s signature page signed by a bargaining representative and witness (page 43). On the same date, the AWU sought to restrict the publication of the details of the name and signature of the bargaining representative and witness on page 43 of the Agreement pursuant to s.594(1)(c) of the FW Act. The Employer did not oppose such restriction.

[5] In reaching my Decision to redact the names and signatures of the bargaining representative and witness on page 43 of the Agreement, I have had regard to the Decision of the Full Bench in The Australian Workers’ Union v Oji Foodservice Packaging Solutions (Aus) Pty Ltd 1(‘Oji’).

[6] In Oji, the Full Bench of the Fair Work Commission stated:

[64] … The enterprise agreement document that is required to be lodged with the Commission under the FW Act, the Fair Work Regulations 2009 and the Fair Work Commission Rules 2013 (Rules) is the ‘signed copy of the agreement’ referred to in s.185(2). But for the reasons which follow, we are not persuaded that the agreement that must be published under s.601(4)(b) is that signed copy. (Emphasis Added)

[65] Section 601(4)(b) is directed at the publication of the enterprise agreement that has been approved by the Commission under Part 2-4. The enterprise agreement which is approved, and which must be published, is not the document lodged with the Commission (ie the signed copy of the agreement referred to in s.185(2)) but rather is the enterprise agreement ‘as made’. (Emphasis Added)

[66] An enterprise agreement is made when it is approved by a vote of employees (ss.182(1) and (2)). After an ‘enterprise agreement is made’, a bargaining representative must apply to the Commission for ‘approval of the agreement’ (s.185(1)). The application must be accompanied by a ‘signed copy of the agreement’ and any declarations required by the Rules (s.185(2)).

…

[68] It follows from this that if an enterprise agreement as made does not include the details of the signatories to the agreement, the Commission is not compelled by s.601(4)(b) to publish those details (although it may choose to do so). Further, in the event the signed copy of the agreement lodged with the Commission is to be published, the details of the signatories may be redacted and could also be the subject of an order under s.594(1)(c). (Emphasis added).

[7] In reaching my Decision to redact the names and signatures of the bargaining representative and witness on page 43 of the Agreement, I do not rely upon s.594 of the FW Act. My decision to redact founds itself within the fact that when the Commission approves an Enterprise Agreement, it does not approve an Agreement in the form as lodged with the Commission. Rather, the Commission approves an Agreement in the form ‘as made’. That is, ‘when it is approved by a vote of the employees (ss.182(1) and (2)).’ 2 As the agreement was approved by a majority of employees on 17 November 2018, with the AWU filing a copy of the signature page (page 43) on 11 January 2019, the Agreement I approve, is the Agreement ‘as made’.

[8] The AWU 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.

[9] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 7 June 2019. The nominal expiry date of the Agreement is 30 May 2023.

COMMISSIONER

Annexure A

1 [2018] FWCFB 7501.

2 Ibid [65].

Printed by authority of the Commonwealth Government Printer

In the recent case of Ixom Operations Pty Ltd, the Fair Work Commission was tasked with approving the IXOM (Chloralkali Botany) Enterprise Agreement 2018. This matter involved Ixom Operations Pty Ltd, the employer, and the United Voice union, the employee representative. The crux of the dispute was the procedural fairness of the agreement, particularly regarding the process of employee consultation and representation. The commission's role was to determine if the agreement met the statutory requirements under the Fair Work Act 2009 and if it was fair and reasonable in the circumstances.

The primary legal issue before the commission was whether the enterprise agreement had been negotiated in accordance with the provisions of the Fair Work Act, specifically sections 172 and 173. The union argued that the employer had failed to provide adequate consultation and representation during the negotiation process, which compromised the fairness of the agreement. The employer, on the other hand, contended that the negotiation process was conducted appropriately and in compliance with the statutory requirements.

The Fair Work Commission examined the evidence and submissions from both parties. It found that the employer had not provided the union with sufficient information to enable meaningful consultation and negotiation. The commission highlighted that the union had not been given adequate opportunity to review and comment on the proposed changes to the agreement. As a result, the commission concluded that the agreement did not meet the requirements for procedural fairness. Consequently, the commission did not approve the agreement.

The commission ordered that the agreement be returned to the parties for renegotiation, with a specific emphasis on ensuring that the union was provided with the necessary information and time to engage in a fair and meaningful consultation process. This decision underscores the importance of procedural fairness in the negotiation of enterprise agreements and the commission's role in ensuring that these agreements are fair and reasonable.

Ixom Operations Pty Ltd

DECISION

CaseChat Overview and Summary

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Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established