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

[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.

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.

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

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]

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.

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.

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.

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.

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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CaseChat Overview and Summary

The parties involved in the case were H.E.S.T. Australia Limited, trading as HESTA Super Fund, and its employees, represented by the Australian Council of Trade Unions (ACTU). The nature of the dispute was the application for the approval of the HESTA Enterprise Agreement 2024-2027. The court involved was the Fair Work Commission (FWC), a federal workplace relations tribunal in Australia. The FWC was tasked with determining whether the proposed enterprise agreement met the necessary legal standards for approval.

The primary legal issues that the court had to decide revolved around whether the proposed agreement was fair and reasonable, if it complied with the relevant statutory requirements, and if it had been appropriately negotiated. The court had to assess if the agreement provided for fair terms and conditions of employment, including minimum wages, hours of work, leave entitlements, and other employment-related matters. Additionally, the court examined if the agreement met the procedural requirements for its negotiation and if it had been fairly and genuinely negotiated.

The FWC determined that the HESTA Enterprise Agreement 2024-2027 was fair and reasonable, as it provided for appropriate terms and conditions of employment. The court found that the agreement met the necessary statutory requirements and had been fairly and genuinely negotiated. The FWC noted that the agreement contained provisions that addressed key employment-related matters, such as minimum wages, hours of work, leave entitlements, and other employment-related issues. The court also found that the agreement had been negotiated in good faith and that the parties had complied with the relevant procedural requirements. Consequently, the FWC approved the HESTA Enterprise Agreement 2024-2027.

As a result of the FWC's decision, the HESTA Enterprise Agreement 2024-2027 was approved and became legally binding between H.E.S.T. Australia Limited, trading as HESTA Super Fund, and its employees, represented by the Australian Council of Trade Unions (ACTU). The approved agreement sets out the terms and conditions of employment for the employees covered by the agreement, including minimum wages, hours of work, leave entitlements, and other employment-related matters. The approval of the enterprise agreement ensures that the rights and obligations of both parties are clearly defined and legally enforceable.

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

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established