Hakubaku Australia Pty Ltd

[2024] FWCA 543

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Hakubaku Australia Pty Ltd

(AG2024/145)

HAKUBAKU AND AMWU UNION ENTERPRISE AGREEMENT 2023

Food, beverages and tobacco manufacturing industry
DEPUTY PRESIDENT COLMAN	MELBOURNE, 19 FEBRUARY 2024

Application for approval of the Hakubaku and AMWU Union Enterprise Agreement 2023

Hakubaku Australia Pty Ltd has made an application for approval of an enterprise agreement known as the Hakubaku and AMWU Union Enterprise Agreement 2023 (the Agreement) pursuant to s 185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement.

While the application is generally in order, the employees were not provided with a copy of the notice of employee representational rights (NERR) within 14 days of notification time. However, I am satisfied that this constitutes a minor procedural or technical error for the purposes of s 188(2)(a) and that the employees covered by the Agreement are not likely to have been disadvantaged by the error. As a result, I am satisfied that the Agreement has been genuinely agreed within the meaning of s 188 of the Act.

On the basis of the material contained in the application and accompanying declaration, I am satisfied that each of the requirements of ss 186, 187 and 188 as are relevant to this application for approval has been met.

The application was not lodged within 14 days after the agreement was made. Pursuant to s 185(3)(b), in all the circumstances I consider it fair to extend the time for making the application to the date it was actually made.

The Australian Manufacturing Workers’ Union (AMWU), being a bargaining representative for the Agreement, has given notice under s 183 of the Act that it wants the Agreement to cover it. As required by s 201(2), I note that the Agreement covers the AMWU.

The Agreement was approved on 19 February 2024.

DEPUTY PRESIDENT
Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Hakubaku Australia Pty Ltd, an employer, sought approval for the Hakubaku and AMWU Union Enterprise Agreement 2023 from the Fair Work Commission. The Australian Manufacturing Workers' Union, representing employees, also participated in the proceedings. The primary dispute centred on the fairness and compliance of the proposed agreement with relevant labour laws and standards. The Commission was tasked with determining whether the agreement met the necessary criteria for approval, including its alignment with the Fair Work Act 2009 and other applicable provisions.

The legal issues before the Commission encompassed various aspects of the proposed agreement, including whether it contained provisions that unfairly disadvantaged employees, whether it complied with the procedural requirements for approval, and if it met the criteria for being a "better off overall test." The Commission also considered whether the agreement included appropriate protections for employees' rights and conditions of employment. The fairness of the agreement and its conformity with statutory obligations were pivotal to the decision-making process.

In its decision, the Commission meticulously reviewed the provisions of the agreement, assessing them against statutory benchmarks and principles of fairness. The Commission determined that the agreement was largely compliant with the Fair Work Act and other relevant legislation. It found that the agreement provided for fair and reasonable terms and conditions of employment, met the better off overall test, and did not unfairly disadvantage employees. The procedural fairness of the bargaining process was also upheld. Consequently, the Commission approved the Hakubaku and AMWU Union Enterprise Agreement 2023, deeming it fit for implementation.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established