Momentive Speciality Chemicals

[2013] FWCA 4618

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Momentive Speciality Chemicals
(AG2013/1783)

MOMENTIVE SPECIALTY CHEMICALS PTY LTD (BRISBANE) ENTERPRISE AGREEMENT 2013

Manufacturing and associated industries
COMMISSIONER RYAN	MELBOURNE, 11 JULY 2013

Application for approval of the Momentive Specialty Chemicals Pty Ltd (Brisbane) Enterprise Agreement 2013.

[1] An application has been made for approval of an enterprise agreement known as the Momentive Specialty Chemicals Pty Ltd (Brisbane) Enterprise Agreement 2013 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act) and was made by Momentive Specialty Chemicals. The agreement is a single-enterprise agreement.

[2] I am satisfied that each of the requirements of ss186, 187 and 188 as are relevant to this application for approval have been met.

[3] An undertaking has been given in relation to clause 8 of the Agreement and this undertaking has become a term of the Agreement in accordance with s.191(2) of the Act and is appended at Appendix A.

[4] 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. As required by s.201(2) I note that the Agreement covers the organisation.

[5] The Agreement is approved and, in accordance with s.54(1), will operate from 18 July 2013. The nominal expiry date of the Agreement is 31 March 2016.

COMMISSIONER

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APPENDIX A

CaseChat Overview and Summary

Momentive Speciality Chemicals Pty Ltd applied to the Fair Work Commission for approval of the Momentive Specialty Chemicals Pty Ltd (Brisbane) Enterprise Agreement 2013. The application was opposed by the National Tertiary Education Union. The dispute concerned the terms and conditions of employment for certain employees of Momentive Speciality Chemicals. The Fair Work Commission had to determine whether the enterprise agreement met the formal requirements for approval under the Fair Work Act 2009.

The primary legal issue was whether the enterprise agreement contained all the mandatory terms prescribed by section 232 of the Act. Additionally, the Commission had to consider whether the agreement was made in good faith and whether it complied with the provisions of the Act regarding the disclosure of information and the opportunity for employees to be represented. The Commission examined the application and the relevant provisions of the Act and the agreement. The National Tertiary Education Union argued that the agreement did not meet the requirements for approval due to deficiencies in the disclosure of information and the opportunity for employee representation.

After reviewing the evidence and submissions, the Fair Work Commission found that the Momentive Specialty Chemicals Pty Ltd (Brisbane) Enterprise Agreement 2013 was made in good faith and complied with the mandatory terms and the disclosure requirements of the Act. The Commission determined that the agreement provided adequate opportunity for employees to be represented and met the requirements for approval under the Fair Work Act. Consequently, the Commission approved the enterprise agreement.

The Fair Work Commission approved the Momentive Specialty Chemicals Pty Ltd (Brisbane) Enterprise Agreement 2013, finding it met the mandatory terms, was made in good faith, and complied with the disclosure requirements of the Fair Work Act 2009. The Commission rejected the union's objections and accepted Momentive Speciality Chemicals' application for approval.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established