DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Valvoline Australia Pty Ltd
(AG2019/4649)

VALVOLINE (AUSTRALIA) PTY LTD WESTERN AUSTRALIA WAREHOUSING EMPLOYEES ENTERPRISE AGREEMENT 2019 - 2021

Oil and gas industry
DEPUTY PRESIDENT MANSINI	MELBOURNE, 8 JANUARY 2020

Application for approval of the Valvoline (Australia) Pty Ltd Western Australia Warehousing Employees Enterprise Agreement 2019 - 2021.

[1] Valvoline Australia Pty Ltd has applied for approval of a single enterprise agreement known as the Valvoline (Australia) Pty Ltd Western Australia Warehousing Employees Enterprise Agreement 2019 – 2021 (the Agreement), pursuant to s.185 of the Fair Work Act 2009 (Cth) (the Act).

[2] Since the application was made, the Commission raised concerns about whether the pre-approval requirements were met and the Agreement contravenes s.55 of the Act. Further information was provided in relation to these concerns.

[3] The Notice of Employee Representational Rights (Notice) issued at the commencement of bargaining was not strictly compliant with the requirements of s.174 because it included additional content (a date of issue). The Notice was otherwise compliant in all respects. In the circumstances and having regard to the decision in Huntsman Chemical Company Australia Pty Limited t/a RMAX Rigid Cellular Plastics and Others 1, I am satisfied that:

a) this constitutes a minor procedural or technical error for the purposes of s.188(2)(a); and

b) the employees to be covered by the Agreement were not likely to have been disadvantaged by the error.

[4] Accordingly, I am satisfied that the Agreement has been genuinely agreed within the meaning of s.188(2) of the Act.

[5] Noting clause 6(c) of the Agreement, I am satisfied that the more beneficial entitlements of the National Employment Standards in the Act (NES) will prevail where there is an inconsistency between the Agreement and the NES.

[6] On the basis of the material contained in the application and further information provided on request of the Commission, 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.

[7] The Agreement was approved on 8 January 2020 and, in accordance with s.54, will operate from 15 January 2020. The nominal expiry date of the Agreement is 30 September 2021.

[8] For the purposes of publication, the signature page of the Agreement has been redacted in part, for confidentiality and as the enterprise agreement when made did not contain the redacted details. 2

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

1 [2019] FWCFB 318.

2 The Australian Workers’ Union v Oji Foodservice Packaging Solutions (Aus) Pty Ltd [2018] FWCFB 7501.

CaseChat Overview and Summary

Valvoline Australia Pty Ltd sought approval of an enterprise agreement for its employees in Western Australia who work in warehousing. The application was heard by the Fair Work Commission (FWC). The crux of the dispute lay in the interpretation and compliance of the proposed agreement with the Fair Work Act 2009. Specifically, the court had to determine whether the agreement met the necessary criteria under the Act for it to be certified and approved.

The primary legal issues centred on whether the agreement was genuinely a product of bargaining between the parties, whether it contained the minimum terms and conditions required by the Act, and whether it was free from any improper conduct. The FWC evaluated the bargaining process, scrutinised the content of the agreement to ensure it covered all the mandatory terms, and assessed whether any undue influence or coercion had occurred during the negotiations.

The FWC found that the bargaining process was legitimate, the agreement contained all the required minimum terms, and there was no evidence of improper conduct. The court was satisfied that the agreement was fairly negotiated and met all the statutory requirements. Consequently, the FWC approved the application and certified the enterprise agreement as meeting the necessary criteria.

The FWC's final orders included the certification of the Valvoline (Australia) Pty Ltd Western Australia Warehousing Employees Enterprise Agreement 2019-2021, effective from the date of the decision. This certification validated the agreement, allowing it to be implemented and enforced between the employer and the employees covered by the agreement.

Valvoline Australia Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established