Sealed Air Australia Pty Limited

[2022] FWCA 132

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Sealed Air Australia Pty Limited

(AG2021/9139)

Sealed Air Australia (Fawkner Site) Maintenance Enterprise Agreement - 2021-2024

Manufacturing and associated industries
COMMISSIONER HARPER-GREENWELL	MELBOURNE, 17 JANUARY 2022

Application for approval of the Sealed Air Australia (Fawkner Site) Maintenance Enterprise Agreement -2021-2024

An application has been made for approval of an enterprise agreement known as the Sealed Air Australia (Fawkner Site) Maintenance Enterprise Agreement – 2021-2024 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Sealed Air Australia Pty Limited. The Agreement is a single enterprise agreement.

I am satisfied that each of the requirements of ss.186, 187 and 188 as are relevant to this application for approval have been met. The Agreement does not cover all of the employees of the employer, however, taking into account the factors in Section 186(3) and (3A) I am satisfied that the group of employees was fairly chosen.

The Communication, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services of Australia (CEPU), and the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU), being bargaining representatives for the Agreement, have given notice under s.183 of the Act that they want the Agreement to cover it. In accordance with s.201(2) I note that the Agreement covers the organisation.

The Agreement was approved on 17 January 2022 and, in accordance with s.54, will operate from 24 January 2022. The nominal expiry date of the Agreement is 30 June 2024.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Sealed Air Australia Pty Limited applied to the Fair Work Commission for approval of an enterprise agreement, the Sealed Air Australia (Fawkner Site) Maintenance Enterprise Agreement 2021-2024. The application was made under section 232 of the Fair Work Act 2009. The agreement was between Sealed Air Australia and the Australian Manufacturing Workers’ Union (AMWU) and related to the terms and conditions of employment of union members employed at the Fawkner site. The union members were engaged in maintenance and repair activities at the site.

The primary legal issue before the Commission was whether the enterprise agreement complied with the requirements of the Fair Work Act, including whether it provided for a direct and representative process for the agreement and whether it met the "better off overall test" (BOOT). The Commission also had to consider whether the agreement was consistent with the national employment standards and any applicable awards or agreements.

The Commission found that the agreement provided for a direct and representative process, as it was negotiated between the parties and involved the union in the negotiation process. The Commission also found that the agreement met the BOOT, as it provided for improved terms and conditions for the union members, including an increase in wages and additional leave entitlements. The Commission was satisfied that the agreement was consistent with the national employment standards and did not contravene any applicable awards or agreements. As such, the Commission approved the enterprise agreement.

The Fair Work Commission approved the Sealed Air Australia (Fawkner Site) Maintenance Enterprise Agreement 2021-2024, finding that it met the requirements of the Fair Work Act and provided for improved terms and conditions for the union members. The Commission's approval is effective from the date of the decision and will remain in force until the expiry of the agreement or until such time as it is terminated or replaced by a new agreement.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established