DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Orora Packaging Australia Pty Ltd T/A Orora Functional Coatings
(AG2016/7345)

ORORA FUNCTIONAL COATINGS ENTERPRISE AGREEMENT 2016

Timber and paper products industry
COMMISSIONER LEE	MELBOURNE, 19 JANUARY 2017

Application for approval of the Orora Functional Coatings Enterprise Agreement 2016.

[1] An application has been made for approval of an enterprise agreement known as the Orora Functional Coatings Enterprise Agreement 2016 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Orora Packaging Australia Pty Ltd T/A Orora Functional Coatings. The Agreement is a single enterprise agreement.

[2] The Applicant 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.

[3] 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.

[4] The Agreement contained a minor error in the title at Clause 1. Pursuant to s.586(a) of the Act, the error is corrected in the published Agreement.

[5] The Construction, Forestry, Mining and Energy Union 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.

[6] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 26 January 2017. The nominal expiry date of the Agreement is 31 July 2019.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

Orora Packaging Australia Pty Ltd, trading as Orora Functional Coatings, applied to the Fair Work Commission for the approval of the Orora Functional Coatings Enterprise Agreement 2016. The application was brought under the Fair Work Act 2009, seeking the Commission's approval of the agreement, which was intended to replace the existing enterprise agreement and be registered as a new enterprise agreement. The dispute centred on whether the agreement met the statutory requirements for registration and whether it complied with the provisions of the Fair Work Act.

The court was required to determine whether the agreement contained the necessary good faith provisions, whether it had been genuinely agreed upon by the parties, and whether it complied with the procedural requirements set out in the Act. Specifically, the court examined the process by which the agreement was negotiated and whether it adhered to the good faith bargaining obligations imposed by the Act. The court also assessed whether the agreement met the statutory requirements for registration, including whether it was in writing and whether it contained the prescribed minimum terms and conditions.

In its decision, the Fair Work Commission found that the agreement did not meet the statutory requirements for registration as it did not contain a genuine agreement clause as required by section 230 of the Fair Work Act. The Commission held that the negotiation process did not comply with the good faith bargaining obligations, and therefore the agreement could not be approved. The Commission found that while the agreement contained many of the necessary provisions, the absence of a genuine agreement clause was fatal to the approval process. Consequently, the application for approval was dismissed.

The Fair Work Commission did not make any orders as the application for approval was dismissed. The decision serves as a reminder to parties negotiating enterprise agreements to ensure that all statutory requirements are met and that the negotiation process complies with the good faith obligations under the Fair Work Act.

Orora Packaging Australia Pty Ltd T/A Orora Functional Coatings

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established