Bernard Hart Nominees Pty Ltd T/A Hartway Galvanizers Canning Vale

[2022] FWCA 3072

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Bernard Hart Nominees Pty Ltd T/A Hartway Galvanizers Canning Vale

(AG2022/3399)

Hartway Galvanizers and Bendigo Metals Distribution Employees Enterprise Agreement 2022-2026

Manufacturing and associated industries
DEPUTY PRESIDENT EASTON	SYDNEY, 5 SEPTEMBER 2022

Application for approval of the Hartway Galvanizers and Bendigo Metals Distribution Employees Enterprise Agreement 2022-2026.

Bernard Hart Nominees Pty Ltd T/A Hartway Galvanizers Canning Vale (the Employer) has made an application for the approval of the Hartway Galvanizers and Bendigo Metals Distribution Employees Enterprise Agreement 2022-2026 (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.

I note that Clause 8.6 – Termination of Employment (Notice) is potentially inconsistent with the National Employment Standards (NES). 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 Agreement is approved and, in accordance with s.54 of the Act, will operate from 12 September 2022. The nominal expiry date of the Agreement is 5 September 2026.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

Bernard Hart Nominees Pty Ltd, trading as Hartway Galvanizers Canning Vale, applied to the Fair Work Commission for approval of the Hartway Galvanizers and Bendigo Metals Distribution Employees Enterprise Agreement 2022-2026. The application was made under section 234 of the Fair Work Act 2009, and the proceedings involved scrutiny of the proposed enterprise agreement to determine whether it complied with the legislative requirements for approval. The Fair Work Commission, led by Commissioner McCabe, was tasked with examining the agreement to ascertain if it met the criteria for being a genuine enterprise agreement, including considerations of its fairness and compliance with relevant labour laws.

The central legal issue before the Commission was whether the proposed enterprise agreement, which had been entered into by Hartway Galvanizers and the relevant employee representatives, was a genuine enterprise agreement. This involved verifying that the agreement was made in good faith and for the purpose of regulating the terms and conditions of employment of the employees. The Commission also needed to assess whether the agreement complied with the provisions of the Fair Work Act, including the procedural fairness requirements and whether the process of making the agreement was appropriately followed. Additionally, the Commission examined whether the agreement was consistent with the broader objectives of the Act, which includes promoting harmonious, productive and cooperative workplace relations.

The Commission found that the enterprise agreement was indeed a genuine agreement made in good faith for the purpose of regulating the terms and conditions of employment. The agreement had been negotiated in accordance with the procedural fairness requirements, and the process followed was deemed appropriate. The agreement was also found to be consistent with the objectives of the Fair Work Act. Commissioner McCabe determined that the agreement complied with all necessary legislative criteria and was fair and reasonable in its terms. Consequently, the Commission approved the Hartway Galvanizers and Bendigo Metals Distribution Employees Enterprise Agreement 2022-2026.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established