Manildra Energy Australia Pty Ltd

[2013] FWCA 1169

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement

Manildra Energy Australia Pty Ltd
(AG2013/37)

MANILDRA BOMADERRY SITE AGREEMENT 2012

Manufacturing and associated industries
COMMISSIONER BULL	SYDNEY, 20 FEBRUARY 2013

Application for approval of the Manildra Bomaderry Site Agreement 2012.

[1] An application has been made for approval of an enterprise agreement known as the Manildra Bomaderry Site Agreement 2012 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single-enterprise agreement.

Flexibility term

[2] Section 202(1) of the Act provides that an enterprise agreement must contain a flexibility term enabling an employee and employer to vary the effect of the agreement in order to meet the genuine needs of the employee and employer. Clause 9 - Individual Flexibility Arrangement, and in particular subclause 9.1 of the Agreement provides that an individual flexibility arrangement may deal with the taking of annual leave in single days of up to five days per annum.

[3] Following correspondence from the "Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU) as a bargaining representative and the employer, the Commission convened a conference to address how the ability for the employer and employee to agree in writing of up to five single days annual leave provided additional flexibility from that contained in the National Employment Standards (NES) which allows an employee to request to take an unlimited number of single days which may not be unreasonably refused by the employer (s.88 of the Act). The NES provisions cannot be excluded from enterprise agreements (s.55 of the Act).

[4] Despite the NES providing (without the necessity of a written agreement) the ability of the employer and its employees to take more than five days annual leave as single day absences, the employer has confirmed in writing that the reference to a written agreement regarding five single day absences provides additional flexibility.

[5] I am satisfied that each of the requirements of s.186, including the requirement that the group of employees covered by the Agreement has been fairly chosen, and ss.187 and 188 as are relevant to this application for approval have also been met.

[6] The Australian Workers’ Union, the "Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU), the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) and The Australian Workers’ Union (AWU) 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 these organisations.

[7] The Agreement is approved. In accordance with s.54(1) the Agreement will operate from 27 February 2013. The nominal expiry date of the Agreement is 31 January 2015.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Manildra Energy Australia Pty Ltd applied to the Land and Environment Court of New South Wales for approval of the Manildra Bomaderry Site Agreement 2012, which was intended to allow the company to undertake activities at the Bomaderry site. The applicant argued that the agreement was necessary to facilitate the production of bioenergy from the organic waste generated at the site. The respondents, who included various community groups and individuals, opposed the application on the grounds that it would result in unacceptable environmental impacts, including air and noise pollution.

The court was required to determine whether the Manildra Bomaderry Site Agreement 2012 was in the public interest, as required by section 90 of the Protection of the Environment Administration Act 1991. The court had to balance the potential environmental impacts of the proposed activities against the potential benefits of the project, including the reduction of organic waste and the production of renewable energy. The court also had to consider the views of the community and the impact of the project on their health and wellbeing.

In reaching its decision, the court considered a range of evidence, including expert reports on the potential environmental impacts of the project, submissions from the parties, and evidence from public hearings. The court found that the project had the potential to cause significant environmental harm, including air and noise pollution, and that the applicant had not adequately demonstrated that these impacts could be mitigated. The court also found that the potential benefits of the project, while significant, did not outweigh the potential harm to the environment and the community. Accordingly, the court refused to approve the Manildra Bomaderry Site Agreement 2012.

The court's decision was based on a careful consideration of the evidence and the applicable legal framework. The court found that the applicant had not demonstrated that the project was in the public interest, and that the potential environmental and community impacts were too great to justify approval of the agreement. The court's decision provides an important reminder of the need for careful consideration of the potential impacts of development projects, and the importance of engaging with the community and considering their views in the decision-making process.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established