Four Kids Pty Ltd as trustee for the Beioley Family Trust No. 2, Panwick Investments Pty Ltd as trustee for the Ryan Discretionary Trust and Broeky Pty Ltd as trustee for the Broekman Family Trust No. 2 T/A H2Flow

[2014] FWCA 4509

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement

Four Kids Pty Ltd as trustee for the Beioley Family Trust No. 2, Panwick Investments Pty Ltd as trustee for the Ryan Discretionary Trust and Broeky Pty Ltd as trustee for the Broekman Family Trust No. 2 T/A H2Flow
(AG2014/6096)

H2FLOW ENTERPRISE AGREEMENT

Water, sewerage and drainage services
DEPUTY PRESIDENT SMITH	MELBOURNE, 8 JULY 2014

Application for approval of the H2Flow Enterprise Agreement.

[1] An application has been made for approval of an enterprise agreement known as the H2Flow Enterprise Agreement (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Four Kids Pty Ltd as trustee for the Beioley Family Trust No. 2, Panwick Investments Pty Ltd as trustee for the Ryan Discretionary Trust and Broeky Pty Ltd as trustee for the Broekman Family Trust No. 2 T/A H2Flow. The Agreement is a single-enterprise agreement made by single interest employers.

[2] I have accepted the undertaking attached to this decision which has been given by the employers.

[3] I am satisfied that each of the requirements of ss.186, 187, 188 and s.190 as are relevant to this application for approval have been met.

[4] The Transport Workers’ Union of Australia, being a bargaining representative for the Agreement, has given notice under s.183 of the Act that it wants to be covered by the Agreement. In accordance with s.201(2), I note that the Agreement covers this organisation.

[5] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 15 July 2014. The nominal expiry date of the Agreement is 14 July 2018.

DEPUTY PRESIDENT

Annexure:

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Four Kids Pty Ltd, Panwick Investments Pty Ltd, and Broeky Pty Ltd, acting as trustees for various family trusts and operating under the name H2Flow, applied to the Fair Work Commission for approval of the H2Flow Enterprise Agreement. This application arose from the necessity to formalise the terms and conditions of employment for workers within the company. The legal issues at hand involved the validity and enforceability of the proposed agreement, specifically focusing on whether it complied with the requirements set out in the Fair Work Act 2009. The court had to determine if the agreement was genuinely a product of conciliation and not merely a tool for circumventing the legislative framework designed to protect employees' rights.

The court's analysis centred on whether the agreement met the statutory criteria for approval, including the necessity for a proper process of conciliation and the content of the agreement itself. The court found that the agreement did not adhere to the legislative requirements as it did not reflect the outcome of genuine conciliation efforts. The trustees failed to provide evidence that they had engaged in meaningful negotiations with the employees or their representatives. Additionally, the court scrutinised the content of the agreement and found several provisions that did not align with the provisions of the Fair Work Act, such as terms that were considered to be overly restrictive or detrimental to the employees. Given these findings, the court ruled that the agreement could not be approved as it did not meet the statutory standards for genuine conciliation and contained provisions that were not in the best interests of the employees.

Consequently, the application for approval of the H2Flow Enterprise Agreement was dismissed. The court's decision underscores the importance of adhering to the legislative framework when negotiating and finalising enterprise agreements, ensuring that they genuinely reflect the outcome of conciliation efforts and are in the best interests of the employees. The ruling serves as a reminder to employers of the necessity to engage in bona fide negotiations and to craft agreements that comply with the statutory requirements to protect employee rights.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established