Application by Hyne & Son Pty Limited T/A Hyne Timber

[2022] FWCA 3435

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185 - Application for approval of a single-enterprise agreement

Application by Hyne & Son Pty Limited T/A Hyne Timber

(AG2022/3963)

Manufacturing and associated industries
COMMISSIONER HUNT	BRISBANE, 7 OCTOBER 2022

Application for approval of the Hyne Timber Tuan and Glulam Enterprise Agreement 2022

Hyne & Son Pty Limited T/A Hyne Timber (the Employer) has applied for approval of an enterprise agreement known as the Hyne Timber Tuan and Glulam Enterprise Agreement 2022 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single-enterprise agreement.

I raised my concern with the Employer that the Agreement’s existing consultation term did not meet the requirements of s.205 of the Act, and that in the event of approval, the model consultation term will be inserted into the Agreement. Pursuant to s. 205(2) of the Act, the model consultation term prescribed by Schedule 2.3 to the Regulations is attached to the Agreement taken to be a term of it.

I have taken into consideration the material filed in the Fair Work Commission (the Commission). 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. The Agreement does not cover all of the employees of the employer, however, taking into account s.186(3) and (3A) I am satisfied that the group of employees was fairly chosen.

The Australian Workers’ Union (AWU), Australian Manufacturing Workers’ Union (AMWU), the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU), and Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (ETU), being bargaining representatives for the Agreement have given notice under s.183 of the Act that they want the Agreement to cover them. In accordance with s.201(2) of the Act I note that the Agreement covers the AWU, AMWU, CFMMEU and ETU.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 14 October 2022. The nominal expiry date of the Agreement is 14 October 2024.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Hyne & Son Pty Limited T/A Hyne Timber has applied to the Fair Work Commission for the approval of a single-enterprise agreement, the Hyne Timber Tuan and Glulam Enterprise Agreement 2022, under section 185 of the Fair Work Act 2009. The application pertains to an agreement that, while not covering all employees, was deemed to have been fairly chosen according to the provisions of the Act. Various unions, including the Australian Workers’ Union, Australian Manufacturing Workers’ Union, the Construction, Forestry, Maritime, Mining and Energy Union, and the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia, have indicated their desire for the agreement to apply to them.

The primary legal issue before the Commissioner was whether the application met the statutory requirements for approval under the Fair Work Act 2009. Specifically, the Commissioner needed to determine if the requirements of sections 186, 187, 188, and 190 of the Act were satisfied, and whether the agreement was appropriately structured and fair in its coverage. The Commissioner also had to consider the adequacy of the consultation term as per section 205 of the Act, and whether the model consultation term prescribed by the regulations would need to be inserted into the agreement.

Upon reviewing the material submitted to the Commission, the Commissioner found that the application met the necessary statutory criteria for approval. The Commissioner noted that while the agreement did not cover all employees, it was fairly chosen, aligning with sections 186(3) and (3A) of the Act. Furthermore, the unions involved had expressed their intention for the agreement to cover them, satisfying section 201(2) of the Act. Consequently, the Commissioner approved the agreement, which will come into effect from 14 October 2022, with a nominal expiry date of 14 October 2024. The Commissioner also noted that the model consultation term from Schedule 2.3 of the Regulations would be attached to the agreement.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established