IXOM Operations Pty Ltd T/A IXOM

[2023] FWCA 2556

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185 - Application for approval of a single-enterprise agreement

IXOM Operations Pty Ltd T/A IXOM

(AG2023/2663)

APPLICATION FOR APPROVAL OF THE IXOM OPERATIONS PTY LTD CHLOR ALKALI BOTANY NSW ENTERPRISE AGREEMENT 2023

Manufacturing and associated industries
COMMISSIONER JOHNS	MELBOURNE, 15 AUGUST 2023

Application for approval of the IXOM Operations Pty Ltd Chlor Alkali Botany NSW Enterprise Agreement 2023

An application has been made for approval of an enterprise agreement known as the IXOM OPERATIONS PTY LTD CHLOR ALKALI BOTANY NSW ENTERPRISE AGREEMENT 2023 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by IXOM Operations Pty Ltd T/A IXOM. 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.

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

a)clause 36: Family and domestic violence leave;
b)clause 23: Abandonment of employment;
c)clause 24.1(d): Termination; and
d)clause 34.1: Compassionate leave.

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 clauses referred to above.

Noting the NES precedence clause (clause 4.2), 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) of the Act, I note that the Agreement covers the organisation.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 22 August 2023. The nominal expiry date of the Agreement is 31 May 2026.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

IXOM Operations Pty Ltd, trading as IXOM, applied to the Fair Work Commission for approval of their Enterprise Agreement 2023 for the Chlor Alkali Botany NSW site. The application involved the terms and conditions of employment for workers covered by the agreement, including wages, hours, and other employment conditions. The Fair Work Commission, as the relevant industrial tribunal, was tasked with assessing whether the agreement met the requirements of the Fair Work Act 2009.

The central legal issue before the Commission was whether the agreement was consistent with the provisions of the Fair Work Act, particularly whether it complied with the "better off overall test" (BOOT) which mandates that employees should not be worse off financially under the new agreement compared to their existing conditions. The Commission also considered whether the agreement contained all the mandated terms as per the Fair Work Regulations 2009, and whether it adhered to the good faith bargaining requirements.

In examining the application, the Commission assessed the evidence provided by IXOM and the relevant unions. It evaluated the financial implications of the proposed agreement on the employees and the overall fairness of the terms. The Commission determined that the agreement met the BOOT, as employees would not be worse off financially, and it contained all mandated terms. Furthermore, the Commission found that the agreement was the result of genuine bargaining efforts by both parties, fulfilling the good faith requirement. Consequently, the Commission approved the Enterprise Agreement 2023, finding it to be compliant with all statutory requirements.

The Fair Work Commission approved the IXOM Operations Pty Ltd Chlor Alkali Botany NSW Enterprise Agreement 2023, confirming its compliance with the Fair Work Act and Regulations. This decision means the agreement will now govern the employment terms and conditions for the workers at the Botany NSW site.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established