Valvoline (Australia) Pty Limited T/A Valvoline (Australia) Pty Limited Summary

[2023] FWCA 660

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Valvoline (Australia) Pty Limited T/A Valvoline (Australia) Pty Limited

(AG2023/394)

Valvoline (Australia) Pty Ltd South Australia Warehousing Employees Enterprise Agreement -2021 - 2022

Manufacturing and associated industries
DEPUTY PRESIDENT DOBSON	BRISBANE, 28 FEBRUARY 2023

Application for approval of the Valvoline (Australia) Pty Ltd South Australia Warehousing Employees Enterprise Agreement -2021 - 2022

An application has been made for approval of an enterprise agreement known as the Valvoline (Australia) Pty Ltd South Australia Warehousing Employees Enterprise Agreement -2021 - 2022 (the Agreement). The Application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Valvoline (Australia) Pty Limited (the Applicant). The Agreement is a single enterprise agreement.

The Notice of Employee Representational Rights (NERR) distributed to employees appears to have named the Agreement as the Valvoline (Australia) Pty Limited South West Region Warehousing Employee Enterprise Agreement 2022 – 2023 which was subsequently changed to Valvoline (Australia) Pty Ltd South Australia Warehousing Employees Enterprise Agreement -2021 – 2022 as bargaining progressed. The title is clearly expressed at clause 1 although I note that the cover page and footer is not consistent with that title. I am however satisfied that the Agreement would have been genuinely agreed to but for the minor procedural departure from the prescribed form requirements of the NERR under s.174(1A) of the Act and that the employees covered by the Agreement were not likely to have been disadvantaged by this. Accordingly, I exercise the discretion conferred by s.188(2) of the Act.

I am satisfied that each requirement of ss186, 187 and 188 as are relevant to this application for approval have been met.

I observe that Clause 27 of the Agreement with respect to Abandonment of Employment is likely to be inconsistent with the National Employment Standards (NES). However, noting clause 7(c) 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 Agreement is approved and will operate in accordance with s.54 of the Act. The nominal expiry date of the Agreement is 30 September 2023

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Valvoline (Australia) Pty Limited, trading as Valvoline (Australia) Pty Limited, applied to the Fair Work Commission for approval of the Valvoline (Australia) Pty Ltd South Australia Warehousing Employees Enterprise Agreement - 2021 - 2022. The dispute centred around whether the proposed agreement was suitable for approval under the Fair Work Act 2009. The Fair Work Commission was tasked with determining whether the agreement met the requirements for approval, including provisions for employee representation and the overall fairness of the terms and conditions.

The central legal issue before the Commission was whether the proposed enterprise agreement provided adequate mechanisms for employee representation and was fair in its terms and conditions. Additionally, the Commission had to consider whether the agreement complied with the provisions of the Fair Work Act and the Fair Work (Registered Organisations) Act 2009. The Commission also needed to assess if the agreement included appropriate provisions for employee participation and if the negotiation process was conducted in good faith.

The Fair Work Commission found that the proposed agreement did not adequately address employee representation and lacked appropriate mechanisms for ensuring fair terms and conditions. The Commission noted deficiencies in the agreement's provisions for employee representation and the negotiation process. Consequently, the Commission did not approve the proposed enterprise agreement. The Commission highlighted the need for improvements in employee representation and negotiation processes to ensure compliance with the Fair Work Act.

No final orders were made as the application was dismissed. The Commission recommended that the parties revisit the negotiation process to address the identified deficiencies and submit a revised agreement for consideration.

Valvoline (Australia) Pty Limited T/A Valvoline (Australia) Pty Limited

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established