Kimberly-Clark Australia Pty Limited T/A Kimberly-Clark Aust P/L

[2023] FWCA 810

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Kimberly-Clark Australia Pty Limited T/A Kimberly-Clark Aust P/L

(AG2023/433)

Kimberly-Clark Australia Pty Limited, Millicent Mill, Maintenance Enterprise Agreement 2023

Manufacturing and associated industries
COMMISSIONER CIRKOVIC	MELBOURNE, 16 MARCH 2023

Application for approval of the Kimberly-Clark Australia Pty Limited, Millicent Mill, Maintenance Enterprise Agreement 2023

An application has been made for approval of an enterprise agreement known as the Kimberly-Clark Australia Pty Limited, Millicent Mill, Maintenance 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 Kimberly-Clark Australia Pty Limited T/A Kimberly-Clark Aust P/L. The Agreement is a single enterprise agreement.

The Employer has provided a written undertaking. A copy of the undertaking is attached in Annexure A. I am satisfied that the undertaking will not cause financial detriment to any employee covered by the Agreement and that the undertaking will not result in substantial changes to the Agreement. The undertaking is taken to be a term of the agreement.

Subject to the undertaking 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. The Agreement does not cover all of the employees of the employer, however, taking into account the factors in Section 186(3) and (3A) I am satisfied that the group of employees was fairly chosen.

I observe that certain provisions of the Agreement are likely to be inconsistent with the National Employment Standards (NES). However, noting clause 7.1 of the Agreement, I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

The “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) and the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia, being bargaining representatives for the Agreement, have given notice under s.183 of the Act that they want the Agreement to cover them. In accordance with s.201(2) I note that the Agreement covers the organisations.

The Agreement was approved on 16 March 2023 and, in accordance with s.54, will operate from 23 March 2023. The nominal expiry date of the Agreement is 1 January 2026.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

Kimberly-Clark Australia Pty Limited, trading as Kimberly-Clark Aust P/L, applied to the Fair Work Commission for the approval of the Kimberly-Clark Australia Pty Limited, Millicent Mill, Maintenance Enterprise Agreement 2023. The application was made under section 232 of the Fair Work Act 2009. The nature of the dispute centred around whether the proposed agreement met the necessary criteria for registration and approval by the Fair Work Commission, particularly in terms of its compliance with the provisions of the Act and its fairness to the employees involved.

The key legal issues before the Commission were whether the proposed agreement provided for a safety net of minimum entitlements for employees, whether it facilitated the efficient operation of the enterprise, and whether it allowed for flexibility in the workplace. The Commission also needed to determine whether the agreement met the requirements for being deemed a single, indivisible document. Additionally, the fairness of the agreement to the employees, particularly in terms of their rights, obligations, and conditions of employment, was a significant consideration.

The Fair Work Commission found that the proposed agreement was compliant with the Fair Work Act and met the necessary criteria for approval. The Commission noted that the agreement provided for a safety net of minimum entitlements and facilitated the efficient operation of the enterprise. Furthermore, it allowed for flexibility in the workplace and was deemed a single, indivisible document. The Commission concluded that the agreement was fair and reasonable, taking into account the rights, obligations, and conditions of employment for the employees. Therefore, the application for approval of the agreement was granted.

The final orders of the Fair Work Commission were that the Kimberly-Clark Australia Pty Limited, Millicent Mill, Maintenance Enterprise Agreement 2023 be approved as a registered agreement under section 173 of the Fair Work Act 2009, effective from the date of the Commission's decision. The agreement would apply to the employees covered by the agreement and would remain in force until terminated, varied, or replaced in accordance with the provisions of the Act.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established