H.E.S.T. Australia Limited T/A HESTA Super Fund

[2024] FWCA 2317

[2024] FWCA 2317

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

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

H.E.S.T. Australia Limited T/A HESTA Super Fund

(AG2024/2025)

HESTA ENTERPRISE AGREEMENT 2024-2027

Banking finance and insurance industry
COMMISSIONER CONNOLLY	MELBOURNE, 21 JUNE 2024

Application for approval of the HESTA Enterprise Agreement 2024-2027.

1. An application has been made for approval of an enterprise agreement known as the HESTA Enterprise Agreement 2024-2027 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act) by H.E.S.T. Australia Limited T/A HESTA Super Fund (the Applicant). The Agreement is a single enterprise agreement.

1. The matter was allocated to my Chambers on 12 June 2024.

1. The notification time for the Agreement under s.173(2) was 3 October 2023 and the Agreement was made on 24 May 2024.  Accordingly, the genuine agreement requirements the Agreement is to be assessed under are those applying after 6 June 2023 and the better off overall test (BOOT) is that applying on and from 6 June 2023. [1] 

1. On 17 June 2024, the Employer was invited to address aspects of the Agreement. The Applicant filed submissions addressing the remaining concerns on 18 June 2024, and I have chosen to accept them.

1. In respect of the alleged Notice of Employee Representational Rights (NERR) deficiency I do not believe that omission of ‘2024-2027’ from the title of the Agreement had the effect of disenfranchising any employee who is covered by the proposed Agreement from participation in the bargaining process. I am satisfied (taking into consideration s.188(5) of the Act and the decision in Huntsman Chemical Company Australia Pty Limited T/A RMAX Rigid Cellular Plastics & Others) that the procedural or technical error is minor and that the employees were not likely to have been disadvantaged, and accordingly, that there has been a genuine agreement.

1. The “Finance Sector Union of Australia”, being a bargaining representative for the Agreement, has given notice under s.183 of the Act that it wants the Agreement to cover it. In accordance with s.201(2) of the Act I note that the Agreement covers this organisation.

1. I am satisfied that each of the requirements of ss.186, 187, 188, 190, 193 and 193A of the Act as are relevant to this application for approval have been met.

1. The Agreement is approved and, in accordance with s.54 of the Act, will operate from 7 days after the date of approval of the Agreement. The nominal expiry date is 30 June 2027.

COMMISSIONER

[1] The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) made a number of changes to enterprise agreement approval processes in Part 2-4 of the Fair Work Act. Those changes broadly commenced operation on 6 June 2023, subject to various transitional arrangements that included those to effect described above.

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