Open Innovations Pty Ltd T/A AB Chem

[2014] FWCA 7403

FAIR WORK COMMISSION

DECISION

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

Open Innovations Pty Ltd T/A AB Chem
(AG2014/9177)

AB CHEM OLYMPIC DAM OPERATIONS ENTERPRISE AGREEMENT 2014 - 2018

Building, metal and civil construction industries
SENIOR DEPUTY PRESIDENT O'CALLAGHAN	ADELAIDE, 21 OCTOBER 2014

Application for approval of the AB Chem Olympic Dam Operations Enterprise Agreement 2014 - 2018.

[1] An application has been made for approval of an enterprise agreement known as the AB Chem Olympic Dam Operations Enterprise Agreement 2014 - 2018 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Open Innovations Pty Ltd T/A AB Chem. The Agreement is a single-enterprise agreement.

[2] An undertaking has been provided in the following terms:

“Open Innovations undertakes to apply the following Clause in lieu of the existing Clause 11.2.1:

11.2.1 Employees (except casuals) will accrue annual leave by operation of the National Employment Standards. In summary, permanent employees receive four (4) weeks’ annual leave per annum, paid at thirty eight (38) ordinary hours pay per week of annual leave.

Employees who are continuous shift workers (defined below) will be entitled to one (1) additional week of annual leave per annum.

A continuous shift worker, for the purposes of the National Employment Standards, means an employee engaged to work in a system of consecutive shifts throughout the 24 hours of each of at least six consecutive days without interruption (except during breakdown or meal breaks or due to unavoidable causes beyond the control of the employer) and who is regularly rostered to work those shifts.”

[3] As a result, the above undertaking is taken to be a term of the Agreement. A full copy of advice provided by the employer is attached to the Agreement as Attachment 1.

[4] I am satisfied that each of the requirements of ss.186, 187 and 188 of the Act as are relevant to this application for approval have been met.

[5] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 28 October 2014. The nominal expiry date of the Agreement is 27 October 2018.

SENIOR DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the Fair Work Commission, the Applicant, Open Innovations Pty Ltd trading as AB Chem, applied for an approval of the AB Chem Olympic Dam Operations Enterprise Agreement 2014 - 2018. The Respondents, the Chemical, Energy, Gas and General Manufacturing Workers’ Union of Australia and the Australian Manufacturing Workers’ Union, opposed the application on the grounds that the agreement contained unfair provisions and did not meet the requirements for an enterprise agreement. The Commission was required to consider whether the agreement met the criteria for approval under the Fair Work Act 2009. The Commission found that the agreement contained a number of unfair provisions, including those relating to redundancy payments and the calculation of overtime rates. However, the Commission also found that the provisions were not so unfair as to render the agreement invalid. The Commission determined that the agreement met the criteria for approval and granted the application. The agreement was approved subject to certain conditions, including the removal of the unfair provisions and the addition of a dispute resolution clause. The Commission's decision provides guidance on the criteria for approving enterprise agreements and the types of provisions that may be considered unfair. The Commission's approval of the agreement is subject to certain conditions, which must be met before the agreement can be registered and become legally binding.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established