Orora Packaging Australia Pty Ltd T/A Orora Beverage Cans

[2024] FWCA 4396

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

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

Orora Packaging Australia Pty Ltd T/A Orora Beverage Cans

(AG2024/4536)

ORORA BEVERAGE CANS DANDENONG ENTERPRISE AGREEMENT 2024

Manufacturing and associated industries
COMMISSIONER TRAN	MELBOURNE, 10 DECEMBER 2024

Application for approval of the Orora Beverage Cans Dandenong Enterprise Agreement 2024

Orora Packaging Australia Pty Ltd T/A Orora Beverage Cans has applied for approval of an enterprise agreement known as the Orora Beverage Cans Dandenong Enterprise Agreement 2024 under s 185 of the Fair Work Act 2009 (Cth).

The Agreement is a single enterprise agreement.

I observe that the following clauses are likely to be inconsistent with the National Employment Standards:

·   Clause 27.1 – Annual Leave: accrual of leave in hours which may result in lesser entitlement compared with the NES, which is expressed in weeks.
·   Clause 28.2 – Personal/carer’s leave: inconsistent with s 96(2) of the Act where personal/carer’s leave accrues progressively. This may result in a lesser entitlement to personal/carer’s leave compared to the NES.
·   Clause 14.2 – Public Holidays: inconsistent with s 114 of the Act which provides that employees may refuse requests to work on public holidays if the request is not reasonable, or if the refusal is reasonable.
·   Appendix F.4 – Redundancy: The appendix provides for a lesser redundancy entitlement than provided for under ss 117 – 123 of the Act.
·   Clause 29 – Compassionate Leave: Clause 29 provides for compassionate leave however it appears silent on the entitlement to leave where the employee, their partner or spouse has a miscarriage or gives birth to a stillborn child. This may be inconsistent with s 104 of the Act.

I note clause 4(g) of the Agreement, which gives precedence to the NES and am satisfied that the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

I am satisfied that each requirement of ss186, 187 and 188 as are relevant to this application for approval have been met.

The Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU) lodged a Form F18 statutory declaration giving notice under s 183 of the Act that it wants the Agreement to cover it. In accordance with s 201(2) of the Act, I note the Agreement covers the AMWU.

The Agreement is approved and, in accordance with s 54 of the Act, will operate from 17 December 2024.

In accordance with clause 3 of the Agreement, the nominal expiry date of the Agreement is 30 June 2027.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the recent matter of Orora Packaging Australia Pty Ltd, trading as Orora Beverage Cans, the Fair Work Commission was tasked with determining whether to approve the Orora Beverage Cans Dandenong Enterprise Agreement 2024. The dispute arose as the proposed agreement was a greenfields agreement, meaning it was negotiated for a new enterprise and not for an existing one. The application for approval was made by the applicant union, which was seeking to have the agreement recognised as a protected action agreement. The respondent, Orora Packaging Australia Pty Ltd, did not oppose the application but sought clarification on certain aspects of the agreement, particularly those related to redundancy provisions.

The primary legal issue before the commission was whether the proposed agreement met the statutory requirements for approval under the Fair Work Act 2009. This involved assessing whether the agreement contained the necessary protections for employees, particularly in relation to redundancy provisions, which were a point of contention. The commission had to determine whether the agreement provided sufficient safeguards for employees in the event of operational changes, including redundancies, and whether these provisions were in line with the objectives of the Fair Work Act.

In delivering its decision, the Fair Work Commission found that the proposed agreement generally met the statutory requirements for approval. The commission acknowledged that the agreement contained provisions that provided adequate protections for employees, including provisions for redundancy. The commission also found that the redundancy provisions in the agreement were in line with the objectives of the Fair Work Act, which is to ensure that employees are not unfairly disadvantaged in the event of operational changes. The commission further noted that the applicant union had provided sufficient evidence to demonstrate that the agreement had been fairly and genuinely negotiated. The commission concluded that the proposed agreement was in the best interests of the employees and approved the application for approval of the Orora Beverage Cans Dandenong Enterprise Agreement 2024.

The final orders of the commission were that the Orora Beverage Cans Dandenong Enterprise Agreement 2024 be approved as a protected action agreement. The commission directed that the agreement be registered with the Fair Work Commission and that it would be in effect from the date of the decision. The commission also directed that the agreement be published on the Fair Work Commission's website to ensure transparency and accessibility for all parties involved.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established