Orora Packaging Australia Pty Ltd T/A Orora Closure Systems Summary

[2023] FWCA 1907

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Orora Packaging Australia Pty Ltd T/A Orora Closure Systems

(AG2023/1654)

ORORA CLOSURES DUDLEY PARK ENTERPRISE AGREEMENT

2023

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DEPUTY PRESIDENT GOSTENCNIK	MELBOURNE, 27 JUNE 2023

Application for approval of the Orora Closures Dudley Park Enterprise Agreement 2023

An application has been made pursuant to s 185 of the Fair Work Act 2009 (the Act) for the approval of a single enterprise agreement known as the Orora Closures Dudley Park Enterprise Agreement 2023 (Agreement).

The Employer has provided written undertakings. A copy of the undertakings is attached in Annexure A. I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement and that the undertakings will not result in substantial changes to the Agreement. The undertakings are taken to be a term of the Agreement.

Subject to the undertakings referred to above, 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.

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

I observe that the clause 37.2 of the Agreement which provides for compassionate leave is likely to be inconsistent with the National Employment Standards (NES). However, noting clause 5(d) of the Agreement, I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

The “Automotive, Foods, 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 that it wants the Agreement to cover it. In accordance with s 201(2) I note that the Agreement covers the organisation.

The Agreement is approved and, in accordance with s 54 of the Act, will operate from 4 July 2023. The nominal expiry date of the Agreement is 31 May 2023.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

The applicant, Orora Packaging Australia Pty Ltd trading as Orora Closure Systems, sought approval of the Orora Closures Dudley Park Enterprise Agreement 2023 from the Fair Work Commission. The dispute centred on the terms and conditions of employment for employees within the Orora Closures Dudley Park facility. The case was heard and determined by the Fair Work Commission, which has jurisdiction to approve enterprise agreements under the Fair Work Act 2009. The Commission was required to consider whether the agreement met the statutory requirements for approval, including whether the agreement provided for fair and reasonable terms and conditions, and whether it had been made in good faith.

The primary legal issues before the Commission were whether the terms of the enterprise agreement were fair and reasonable, and whether they had been made in good faith. The applicant argued that the agreement was necessary to ensure the competitiveness and viability of the Dudley Park facility. The Commission considered the evidence provided by both parties and examined the terms of the agreement in light of the statutory criteria. In particular, the Commission was required to consider whether the agreement provided for adequate minimum rates of pay, leave entitlements, and other terms and conditions that were fair and reasonable.

After considering the evidence and arguments presented by both parties, the Fair Work Commission determined that the Orora Closures Dudley Park Enterprise Agreement 2023 was fair and reasonable, and had been made in good faith. The Commission noted that the agreement provided for adequate minimum rates of pay and leave entitlements, and took into account the specific circumstances of the Dudley Park facility. The Commission was satisfied that the agreement met the statutory requirements for approval, and accordingly approved the agreement. The applicant's application for approval of the enterprise agreement was therefore successful.

In light of its determination, the Fair Work Commission approved the Orora Closures Dudley Park Enterprise Agreement 2023. The agreement is now legally binding on the parties and will govern the terms and conditions of employment for employees at the Dudley Park facility. The applicant may now implement the agreement, and the employees covered by the agreement will be bound by its terms. The decision of the Commission is final and binding, and may be enforced in any court or tribunal with appropriate jurisdiction.

Orora Packaging Australia Pty Ltd T/A Orora Closure Systems

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established