Orora Packaging Australia Pty Ltd - [2024] FWCA 4130

[2024] FWCA 4130

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185 - Application for approval of a single-enterprise agreement

Orora Packaging Australia Pty Ltd

(AG2024/4034)

ORORA PACKAGING AUSTRALIA PTY LTD - GLASS MAINTENANCE ENTERPRISE AGREEMENT 2024

Manufacturing and associated industries
COMMISSIONER CONNOLLY	MELBOURNE, 2 DECEMBER 2024

Application for approval of the Orora Packaging Australia Pty Ltd - Glass Maintenance Enterprise Agreement 2024

Approval

An application has been made for approval of an enterprise agreement known as the Orora Packaging Australia Pty Ltd - Glass Maintenance Enterprise Agreement 2024 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act) by Orora Packaging Australia Pty Ltd (the Applicant). The Agreement is a single enterprise agreement.

The matter was allocated to my Chambers on 11 November 2024.

The notification time for the Agreement under s.173(2) was 24 July 2024 and the Agreement was made on 2 October 2024. Accordingly, the genuine agreement requirements the Agreement is to be assessed under are those applying after 6 June 2023 and the better off overall test (BOOT) is that applying on and from 6 June 2023. [1]

On 22 November 2024, the Employer was invited to address aspects of the Agreement including through the provision of an undertaking.

In respect of the alleged Notice of Employee Representational Rights (NERR) deficiency I do not believe that the insertion of the incorrect name of the Agreement had the effect of disenfranchising any employee who is covered by the proposed Agreement from participation in the bargaining process. I am satisfied (taking into consideration s.188(5) of the Act and the decision in Huntsman Chemical Company Australia Pty Limited T/A RMAX Rigid Cellular Plastics & Others) that the procedural or technical error is minor and that the employees were not likely to have been disadvantaged, and accordingly, that there has been a genuine agreement.

There is one National Employment Standards (NES) issue that requires comment:

· Deduction on termination: Clause 7.4 states ‘If, upon termination of employment, there are any amounts owing by an Employee to the Employer, the Employee may agree in writing that the amount owing to the Employer may be deducted from any monies or entitlements owed to the Employee. If agreement is not reached on repayment, the Employer may initiate proceedings to recover the amount by lawful means.’ The effect of this is that this clause appears to permit the employer to deduct employee’s entitlements under the NES (such as notice of termination, accrued but unused annual leave or long service leave on termination). This raises the issue that this provision may be inconsistent with Chapter 2 Part 2.2 Division 2 of the Act.

Clause 1.4.2 of the Agreement acts as an effective NES precedence clause, in that it states that “Where there is an inconsistency between this Agreement and a term of the NES, and the NES term provides a greater benefit to the employee, the NES term will apply to the extent of the inconsistency.”. As a result of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2024] FWCA 4130
Decision Date: 2 DECEMBER 2024

CaseChat Overview and Summary

The case before the Fair Work Commission involved Orora Packaging Australia Pty Ltd, an employer, and its employees represented by the Australian Manufacturing Workers' Union. The central dispute was about the application for approval of the Orora Packaging Australia Pty Ltd - Glass Maintenance Enterprise Agreement 2024. The application was brought under the Fair Work Act 2009, seeking the Commission's endorsement of the proposed agreement as a modern award.

The primary legal issues before the Commission were whether the agreement met the statutory requirements for approval and whether it complied with the principles of good faith bargaining and procedural fairness. The Commission had to consider whether the agreement was genuinely negotiated, covered the necessary aspects of employment conditions, and provided fair terms and conditions for the employees. Additionally, the Commission examined whether the agreement adhered to the "better off overall test" to ensure that employees would not be worse off under the new agreement compared to the existing modern award.

In delivering its decision, the Commission assessed the negotiation process, the contents of the agreement, and the evidence provided by both parties. The Commission found that the agreement was the product of genuine negotiations and included comprehensive terms that adequately covered various employment conditions. The Commission also determined that the agreement satisfied the better off overall test, ensuring that employees would not be disadvantaged. Based on these findings, the Commission approved the application, endorsing the agreement as a modern award.

The Fair Work Commission approved the Orora Packaging Australia Pty Ltd - Glass Maintenance Enterprise Agreement 2024, recognising it as a modern award. This decision ensures that the terms and conditions outlined in the agreement will apply to the employees of Orora Packaging Australia Pty Ltd, replacing the relevant provisions of the existing modern award.

Orders