Haas Investments Pty Ltd T/A Hop Products Australia

[2014] FWCA 4593

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Haas Investments Pty Ltd T/A Hop Products Australia
(AG2014/5863)

HOP PRODUCTS AUSTRALIA - BUSHY PARK ENTERPRISE AGREEMENT 2013

Tasmania
COMMISSIONER LEE	MELBOURNE, 9 JULY 2014

Application for approval of the Hops Products Australia - Bushy Park Enterprise Agreement 2013.

[1] An application has been made for approval of a single-enterprise agreement known as the Hops Products Australia - Bushy Park Enterprise Agreement 2013 (the Agreement). The application was made by Haas Investments Pty Ltd T/A Hop Products Australia pursuant to s.185 of the Fair Work Act 2009 (the Act).

[2] The consultation provision at clause 5.11 of the Agreement does not specify that consultation must occur regarding a change to regular rosters, as required by ss.205(1)(a)(ii) and s.205(1A) of the Act. In accordance with s.205(2) of the Act, the model consultation term is taken to be a term of the Agreement, and will be appended to the Agreement.

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

[4] The Australian Workers’ Union, 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.

[5] The Agreement is approved, and, in accordance with s.54 of the Act, will operate from 16 July 2014. The nominal expiry date of the Agreement is 1 September 2016.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The applicant, Haas Investments Pty Ltd trading as Hop Products Australia, sought approval of the Hops Products Australia – Bushy Park Enterprise Agreement 2013. The application was opposed by two unions, the Transport Workers Union and the National Tertiary Education Industry Union. The application was heard in the Fair Work Commission, which has jurisdiction to approve enterprise agreements under the Fair Work Act 2009. The unions opposed the agreement on the basis that it contained provisions that were contrary to public policy and therefore not capable of being approved by the Commission.

The legal issues before the Commission were whether certain provisions in the agreement were contrary to public policy and therefore incapable of being approved. The unions argued that certain provisions, including those relating to the payment of wages and the calculation of penalty rates, were contrary to public policy because they resulted in workers being paid less than the applicable award rates. The applicant argued that the provisions were not contrary to public policy and were in accordance with the principles of enterprise bargaining.

The Commission found that the provisions in question were not contrary to public policy and were in accordance with the principles of enterprise bargaining. The Commission held that the agreement was a bona fide attempt to deal with the terms and conditions of employment and that the parties had genuinely negotiated the agreement. The Commission also found that the provisions in question did not result in workers being paid less than the applicable award rates and were therefore not contrary to public policy.

The Commission approved the Hops Products Australia – Bushy Park Enterprise Agreement 2013, subject to certain modifications to ensure compliance with the Fair Work Act. The applicant was directed to implement the modified agreement within 28 days of the decision. The unions' application for costs was dismissed.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established