Omya Australia Pty Limited T/A Omya Australia Pty Limited (Omya)

[2024] FWCA 897

[2024] FWCA 897

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Omya Australia Pty Limited T/A Omya Australia Pty Limited (Omya)

(AG2024/423)

APPLICATION FOR APPROVAL OF THE OMYA AUSTRALIA PTY LTD (GEELONG PLANT) ENTERPRISE BARGAINING AGREEMENT 2022

Manufacturing and associated industries
COMMISSIONER MIRABELLA	MELBOURNE, 12 MARCH 2024

Application for approval of the Omya Australia Pty Ltd (Geelong Plant) Enterprise Bargaining Agreement 2022

1. Omya Australia Pty Limited T/A Omya Australia Pty Limited (Omya) (the Employer) has made an application for approval of an enterprise agreement known as the Omya Australia Pty Ltd (Geelong Plant) Enterprise Bargaining Agreement 2022 (the Agreement) pursuant to s 185 of the Fair Work Act 2009 (Cth) (the FW Act). The Agreement is a single enterprise agreement.

1. The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) (Amending Act) made a number of changes to enterprise agreement approval processes in Part 2-4 of the FW Act that commenced operation on 6 June 2023.

1. Under transitional arrangements, amendments made by Part 14 of Schedule 1 to the Amending Act in relation to genuine agreement requirements for agreement approval applications apply where the notification time for the agreement was on or after 6 June 2023. The genuine agreement provisions in Part 2-4 of the FW Act, as it was just before 6 June 2023, continue to apply in relation to agreement approval applications where the notification time for the agreement was before 6 June 2023. Question 18 of the Form F17A provides that the notification time for the Agreement was 22 July 2022.

1. Under transitional arrangements, amendments made by Part 16 of Schedule 1 to the Amending Act in relation to the better off overall test requirements for agreement approval applications apply where the agreement was made on or after 6 June 2023. The better off overall test provisions in Part 2-4 of the FW Act, as it was just before 6 June 2023, continue to apply in relation to agreement approval applications where the agreement was made before 6 June 2023. Question 26.2 of the Form F17A provides that the Agreement was made 8 February 2024.

1. On the basis of the material contained in the application and accompanying declaration, I am satisfied that each of the requirements of sections 186, 187 and 188, as are relevant to this application for approval, has been met.

1. I observe that the following provisions are likely to be inconsistent with the National Employment Standards (NES):

• Clause 33

• Clause 29.2

1. However, noting clause 7.2 of the Agreement, I am satisfied that the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

1. 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. In accordance with s 201(2) (and based on the declaration provided by the organisation), I note that the Agreement covers the organisation.

1. The Agreement was approved on and, in accordance with s.54, will operate from 19 March 2024. The nominal expiry date of the Agreement is 1 August 2026.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

<AE523803  PR772268>