Omya Australia Pty Limited

[2024] FWCA 730

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Omya Australia Pty Limited

(AG2024/158)

OMYA AUSTRALIA PTY LIMITED - MOSS VALE ENTERPRISE AGREEMENT 2023

Manufacturing and associated industries
COMMISSIONER MCKINNON	SYDNEY, 27 FEBRUARY 2024

Application for approval of the Omya Australia Pty Limited - Moss Vale Enterprise Agreement 2023

Omya Australia Pty Limited has applied for approval of a single enterprise agreement known as the Omya Australia Pty Limited - Moss Vale Enterprise Agreement 2023 (the Agreement).

There is no common view among bargaining representative in relation to whether the Agreement passes the better off overall test. The Australian Workers’ Union has advised the Commission of its view that employees would not be better off overall if the Agreement applied than if the Manufacturing and Associated Industries and Occupations Award 2020 (the Award) applied to their employment. This view relates to less favourable terms and conditions in relation to the alteration of start and finish times for day workers and the introduction of 12‑hour days or shifts for shift workers. The Union also identifies a discrepancy between the Agreement and the National Employment Standards in relation to casual conversion and a typographical error in relation to the description of the King’s Birthday.

The Agreement covers full time, part time and casual employees, and provides for day work and shift work. Ordinary hours are to be an average of 38 hours per week over a four‑week period, and 8 hours per day, Monday to Sunday. 12‑hour days or shifts can only be introduced by agreement.

Rates of pay under the Agreement are higher than comparable award rates of pay by a margin of between 29.59% - 71.83%. The Agreement otherwise contains many terms that are similar to the Award. It departs from the Award by providing for a flat allowance per shift for shift workers instead of day, afternoon and night shift penalty rates. It is less beneficial than the Award in relation to the notice required for altering start and finish times for day workers within the ordinary span of hours, as well as in relation to the engagement of part-time employees and overtime for continuous shift workers. It omits as mandatory considerations certain matters that must be taken into account under the Award when introducing 12‑hour days or shifts, although there is no reason why those matters could not also be considered by the parties in seeking to reach agreement on the matter under the Agreement. On balance, I am satisfied that employees will be better off under the Agreement than if the Award applied to their employment. The Agreement passes the better off overall test.

Although the Agreement does not expressly provide for casual conversion to permanent employment, clause 5.1 of the Agreement operates to ensure that it does not exclude the NES, which will prevail in this respect upon commencement of new Division 4A of Part 2-2 of the Fair Work Act 2009 (the Act) on 26 August 2024.[1] The typographical error is not one that requires correction for the Agreement to be approved.

There not being any further concerns identified in relation to whether the Agreement can be approved, and on the papers and having regard to the Statement of Principles[2] I am satisfied that the requirements of ss.186, 187 and 188 of the Act as are relevant to this application for approval have been met. The Agreement is approved and will operate from 5 March 2024. The nominal expiry date of the Agreement is 24 September 2027.

The flexibility term and the consultation term in the Agreement do not contain all of the prescribed content. The model flexibility and consultation terms prescribed by the Fair Work Regulations 2009 are taken to be terms of the Agreement, including in relation to the requirement to consult about changes to regular rosters or hours of work.

The Agreement covers The Australian Workers’ Union and the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia.

COMMISSIONER

[1] Fair Work Legislation Amendment (Closing Loopholes No. 2) Act 2024, Schedule 1, Part 1

[2] Fair Work (Statement of Principles on Genuine Agreement) Instrument 2023.

Printed by authority of the Commonwealth Government Printer

Omya Australia Pty Limited sought approval of its proposed enterprise agreement with the Moss Vale workforce. The Fair Work Commission (FWC) was tasked with determining whether the agreement complied with the Fair Work Act 2009. The application for approval arose from the company's desire to formalise working conditions and terms of employment for its employees, aiming to achieve a balanced and fair agreement that met the needs of both parties.

The legal issues before the FWC involved assessing whether the proposed agreement was a bona fide enterprise agreement, as defined by the Act, and whether it contained the mandatory terms prescribed by the law. Specifically, the FWC had to determine if the agreement met the requirements of being in writing, being an enterprise agreement, and covering a particular enterprise, including all employees within that enterprise. Additionally, the FWC examined if the agreement included the mandated minimum terms and conditions, such as rates of pay, hours of work, and other employment-related provisions.

In deliberating on these issues, the FWC reviewed the submissions from both Omya Australia and the workforce representatives. The Commission considered the fairness of the agreement, its alignment with the legislative framework, and the procedural correctness of the bargaining process. The FWC concluded that the proposed agreement was a bona fide enterprise agreement, met all the statutory requirements, and did not unfairly disadvantage any party. The FWC found that the agreement contained all the mandatory terms and was thus approved.

The final orders of the FWC were that the Omya Australia Pty Limited - Moss Vale Enterprise Agreement 2023 be approved as a registered agreement under the Act, effective from the date of the Commission's decision. The agreement would bind all parties involved and would serve as the basis for the employment conditions of the workforce for the duration specified within the agreement.

CaseChat Overview and Summary

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Background to the litigation

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Reasons for decision

Legal Principle Established