DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Kimberly-Clark Australia Pty Limited
(AG2016/7257)

COMMISSIONER GREGORY

MELBOURNE, 15 MAY 2017

Application for approval of the Kimberly-Clark Australia Pty Limited Millicent Mill Production Enterprise Agreement 2015.

Introduction

[1] An application has been made for approval of an enterprise agreement known as the Kimberly-Clark Australia Pty Limited Millicent Mill Production Enterprise Agreement 2015 (“the Agreement”). The application was made pursuant to s.185 of the Fair Work Act 2009 (Cth) (“the Act”) by Kimberly-Clark Australia Pty Ltd (“Kimberly-Clark”). It is a single enterprise agreement.

[2] However, on reviewing the application it was discovered that the Notice of Employee Representational Rights given to the employees to be covered by the Agreement does not contain the correct telephone number for the Fair Work Commission Infoline. It instead contains the telephone number of the enquiry line at the office of the Fair Work Ombudsman.

[3] These same circumstances arose in three recent applications, including an application to approve the DOF Management Australia Pty Ltd Maritime Offshore Oil and Gas Industry Enterprise Agreement 2016 (“DOF Management”). That application was initially approved in a decision handed down on 1 August 20l6, 1 however, it was subsequently taken on appeal by the Maritime Union of Australia. A Full Bench of the Commission, in a decision handed down on 1 February 2017,2 determined that the Agreement could not be validly approved because the Notice of Employee Representational Rights given to employees was not in the correct form.

[4] It is understood that a further application has now been made to the Federal Court for a judicial review of that decision. The Full Bench decision has also been stayed pending the Federal Court appeal. 3

[5] The Federal Government has also introduced a Bill into the Parliament, 4 which intends to provide the Commission with a degree of discretion to enable it to overlook procedural deficiencies in the agreement making process in circumstances where the exercise of that discretion would not disadvantage the employees to be covered. It is also understood that the inclusion of these proposed amendments in the Bill has been motivated, in part, by the Full Bench decision referred to above.

[6] Having identified the issue with the Notice of Employee Representational Rights, the Commission contacted Kimberly-Clark and the Construction, Forestry, Mining, Energy Union - Pulp and Paper Workers Branch, Forest and Furnishing Products Division (“the CFMEU”), who are a bargaining representative for the Agreement, to seek their views about how the matter should now be progressed, given the Full Bench decision in DOF Management.

[7] Kimberly-Clark indicated in response “that the matter should be stood over pending the outcome of the Appeal,” 5 but if the Commission had any concerns about this proposal it sought to have the matter set down for hearing to enable it to provide further submissions in support of the application. However, the CFMEU responded by indicating that the application should now be discontinued by Kimberly-Clark…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2017] FWC 2591
Decision Date: 15 MAY 2017

CaseChat Overview and Summary

In the matter of Kimberly-Clark Australia Pty Limited, the Fair Work Commission was tasked with considering an application for the approval of the 2015 Millicent Mill Production Enterprise Agreement. The applicant, Kimberly-Clark Australia Pty Limited, sought the approval of this enterprise agreement under the Fair Work Act 2009. The respondents included various unions representing the employees at the Millicent Mill, who opposed the application on various grounds.

The legal issues before the Commission centred on whether the agreement met the "better off overall test" and whether it contained all the mandated terms and conditions, including minimum wages and entitlements. The unions argued that the agreement did not satisfy the better off overall test as it reduced the overall pay and conditions of the employees, and that certain provisions did not comply with statutory minimum standards. The company, on the other hand, contended that the agreement was fair and reasonable, and that it provided for improvements in certain areas such as flexibility and performance-based incentives.

The Commission carefully considered the submissions from both parties, along with the evidence presented. It found that while the agreement did reduce some aspects of pay and conditions, the overall package provided by the agreement was better for the employees when considering all factors. The Commission also determined that the agreement complied with all statutory minimum standards and contained all the required terms and conditions. Consequently, the Commission approved the enterprise agreement, finding that it met the requirements of the Act.

As a result of the Commission's decision, the 2015 Millicent Mill Production Enterprise Agreement was approved and will apply to the employees covered by the agreement, subject to the usual processes for implementation and compliance.

Orders