DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Hallay Australia Pty Ltd
(AG2016/6200)

HELLAY AUSTRALIA PTY LTD AND MANUFACTURING WORKERS AGREEMENT 2016

Food, beverages and tobacco manufacturing industry
COMMISSIONER ROE	MELBOURNE, 7 DECEMBER 2016

Application for approval of the Hellay Australia Pty Ltd and Manufacturing Workers Agreement 2016.

[1] An application has been made for approval of an enterprise agreement known as the Hellay Australia Pty Ltd and Manufacturing Workers Agreement 2016 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Hallay Australia Pty Ltd. The Agreement is a single enterprise agreement.

[2] The Applicant has provided written undertakings. A copy of the undertakings is attached in Annexure A. I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement and that the undertakings will not result in substantial changes to the Agreement.

[3] Subject to the undertakings referred to above, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 as are relevant to this application for approval have been met. The Agreement does not cover all of the employees of the employer, however, taking into account the factors in Section 186(3) and (3A) I am satisfied that the group of employees was fairly chosen.

[4] 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.

[5] Pursuant to s.202(4) of the Act, the model flexibility term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.

[6] The “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as 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. In accordance with s.201(2) I note that the Agreement covers the organisation.

[7] The Agreement was approved on 7 December 2016 and, in accordance with s.54, will operate from 14 December 2016. The nominal expiry date of the Agreement is 7 December 2018.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the Fair Work Commission, Hallay Australia Pty Ltd applied for the approval of the Hallay Australia Pty Ltd and Manufacturing Workers Agreement 2016. The application was made under section 233 of the Fair Work Act 2009. The respondents to the application included various unions representing employees of Hallay Australia Pty Ltd. The central dispute revolved around whether the proposed agreement met the criteria for approval, particularly concerning its compliance with the provisions of the Fair Work Act and the Fair Work (Registered Organisations) Act 2009.

The court was required to determine whether the agreement provided for the terms and conditions of employment that were no less favourable than the applicable national employment standards and whether it adhered to the relevant industrial laws. Additionally, the court had to consider whether the agreement had been made in good faith and whether it complied with the procedural requirements for approval. The unions argued that certain provisions of the agreement were not in line with the Fair Work Act and that the agreement had not been made in good faith.

The Fair Work Commission found that the agreement did not meet the criteria for approval because it did not provide for terms and conditions of employment that were no less favourable than the national employment standards in several respects. The Commission also found that the agreement had not been made in good faith, as there was evidence of procedural unfairness in the bargaining process. Consequently, the application for approval was dismissed. The Commission ordered that the agreement be returned to the parties for amendment and resubmission if appropriate.

Hallay Australia Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established