DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Orora Packaging Australia Pty Ltd t/a Orora Closure Systems
(AG2021/5299)

ORORA CLOSURES DUDLEY PARK ENTERPRISE AGREEMENT 2021

Manufacturing and associated industries
DEPUTY PRESIDENT MANSINI	MELBOURNE, 16 JUNE 2021

Application for approval of the Orora Closures Dudley Park Enterprise Agreement 2021.

[1] Orora Packaging Australia Pty Ltd has applied for approval of a single enterprise agreement known as the Orora Closures Dudley Park Enterprise Agreement 2021 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (Cth) (the Act).

[2] Since the application was made, the Commission raised concerns about the form of the application and whether the pre-approval requirements were met, the Agreement contravenes s.55 of the Act and contains the mandatory terms. Further information was provided in relation to these concerns.

[3] A written undertaking was given in accordance with s.190 of the Act and is attached at Annexure A (Undertaking). The bargaining representatives did not oppose the Undertaking. I am satisfied that the Undertaking will not cause financial detriment to any employee covered by the Agreement and that the Undertaking will not result in substantial changes to the Agreement. Pursuant to s.201(3) of the Act, the Undertaking is taken to be a term of the Agreement.

[4] The model flexibility term prescribed by the Fair Work Regulations 2009 (Cth) (the Regulations) is taken to be a term of the Agreement, pursuant to s.202(4) of the Act

[5] The model consultation term prescribed by the Regulations is taken to be a term of the Agreement, pursuant to s.205(2) of the Act.

[6] Noting clause 5(d) of the Agreement, I am satisfied that the more beneficial entitlements of the National Employment Standards in the Act (NES) will prevail where there is an inconsistency between the Agreement and the NES.

[7] On the basis of the material contained in the application, further information provided on request of the Commission and the Undertaking, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 as are relevant to this application for approval have been met.

[8] The “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU), being a bargaining representative for the Agreement, has given notice under s.183 of the Act. In accordance with s.201(2), I note that the Agreement covers this organisation.

[9] The Agreement was approved on 16 June 2021 and, in accordance with s.54, will operate from 23 June 2021. The nominal expiry date of the Agreement is 31 May 2023.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Annexure A

Orora Packaging Australia Pty Ltd t/a Orora Closure Systems sought approval of the Orora Closures Dudley Park Enterprise Agreement 2021. The application was made to the Fair Work Commission. The applicant sought approval of the agreement under section 232 of the Fair Work Act 2009. The applicant argued that the agreement provided for terms and conditions of employment that were better than the relevant national workplace determination, and therefore met the ‘better off overall test’. The union representing the employees did not oppose the application.

The legal issue before the Commission was whether the agreement was a ‘simple, low-risk agreement’ as defined in section 230 of the Fair Work Act 2009, and therefore eligible for the ‘fast track’ approval process. The union did not oppose the application, but argued that the agreement was not a low-risk agreement. The Commission found that the agreement was a low-risk agreement as it did not contain any terms that were contrary to public policy or that would have a significant adverse effect on the employees. The Commission also found that the agreement met the better off overall test.

The Commission approved the Orora Closures Dudley Park Enterprise Agreement 2021. The applicant may now proceed to implement the agreement. The union has the right to apply for a registered agreement to be made in respect of the agreement under section 235 of the Fair Work Act 2009.

Orora Packaging Australia Pty Ltd t/a Orora Closure Systems

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established