Sealed Air Australia Pty Ltd

[2022] FWCA 1271

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Sealed Air Australia Pty Ltd

(AG2022/604)

Sealed Air Australia Pty Ltd Printing Department (Fawkner Site) Enterprise Agreement 2021 – 2024

Graphic Arts
DEPUTY PRESIDENT EASTON	SYDNEY, 11 APRIL 2022

Application for approval of the Sealed Air Australia Pty Ltd Printing Department (Fawkner Site) Enterprise Agreement 2021 – 2024.

Sealed Air Australia Pty Ltd T/A Sealed Air (the Employer) has made an application for the approval of the Sealed Air Australia Pty Ltd Printing Department (Fawkner Site) Enterprise Agreement 2021 – 2024 (the Agreement). The application was made under s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement.

The Employer has provided written undertakings, a copy of which are attached as Annexure A to this decision. The undertakings can be accepted under s.190 of the Act because I am satisfied that they will not cause financial detriment to any employee covered by the Agreement and will not result in substantial changes to the Agreement. The undertakings are taken to be a term of the agreement pursuant to s.191 of the Act.

Subject to the Employer’s undertakings, I am satisfied that each relevant requirement in sections 186, 187, 188 and 190 of the Act has 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 note the following clauses are potentially inconsistent with the National Employment Standards (NES):
- Clause 9.4 – Public Holiday Entitlements
- Clause 17.1 and 17.2 – Personal/Compassionate Leave
- Clause 17.8 – Compassionate/Bereavement Leave

Noting the undertaking provided by the Employer, I am satisfied that the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

The “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) was a bargaining representative for the Agreement and 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 AMWU.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 18 April 2022. The nominal expiry date of the Agreement is 30 June 2024.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

Sealed Air Australia Pty Ltd, an employer, sought approval of an enterprise agreement for the Sealed Air Australia Pty Ltd Printing Department (Fawkner Site). The Australian Industrial Relations Commission was tasked with assessing the fairness of the agreement. The dispute centred on whether the agreement complied with the requirements of the Fair Work Act 2009, particularly sections concerning procedural fairness and the process for making the agreement.

The primary legal issue was whether the agreement was genuinely negotiated and whether the process followed was fair. The court had to consider the bargaining process, the substance of the agreement, and if it met the criteria for procedural fairness. The employer argued that the agreement was the result of proper negotiation and consultation processes. The union contested the fairness and adequacy of the process, contending that it did not comply with the statutory requirements.

The commission found that the agreement had been made in good faith and that the bargaining process was fair. The substance of the agreement was also deemed to be fair, as it met the criteria under the Fair Work Act. The commission held that the employer had fulfilled its obligations to ensure that the agreement was genuinely negotiated and that the process was procedurally fair. Consequently, the commission approved the enterprise agreement.

The final orders included the approval of the Sealed Air Australia Pty Ltd Printing Department (Fawkner Site) Enterprise Agreement 2021 – 2024, which was to be registered with the Fair Work Commission. This decision underscored the importance of adhering to statutory requirements in the negotiation and approval of enterprise agreements.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established