Hansen Yuncken Pty Ltd

[2022] FWCA 1253

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Hansen Yuncken Pty Ltd

(AG2022/713)

Hansen Yuncken Pty Ltd (Tasmania) Agreement 2021 – 2024

Building services
COMMISSIONER MATHESON	SYDNEY, 8 APRIL 2022

Application for approval of the Hansen Yuncken Pty Ltd (Tasmania) Agreement 2021 – 2024.

An application has been made for approval of an enterprise agreement known as the Hansen Yuncken Pty Ltd (Tasmania) Agreement 2021 – 2024 (Agreement). The application was made by Hansen Yuncken Pty Ltd (Applicant) pursuant to s.185 of the Fair Work Act 2009 (Cth) (Act). The Agreement is a single enterprise agreement.

The application was accompanied by a signature page that did not comply in all respects with Regulation 2.06A of the Fair Work Regulations 2009 (Cth) (Regulations). An amended signature page was subsequently filed by the Applicant. I consider it appropriate in the circumstances to waive an irregularity in the form or manner in which an application was made and I do so pursuant to s.586(b) of the Act.

The Agreement was made on 16 February 2022 and the application was made 23 days later, on 11 March 2022. In all the circumstances, I consider it fair to extend the period for the making of the application until the day upon which the application was made. I grant the extension pursuant to s.185(3)(a) of the Act.

Pursuant to s.202(4) of the Act, the model flexibility term prescribed by the Regulations is taken to be a term of the Agreement.

The Employer has provided written undertakings. A copy of the undertakings is attached at Annexure A of this decision (Undertakings). The views of each person I know is a bargaining representative for the Agreement were sought in relation to the Undertakings and no objections were raised. I am satisfied that the effect of accepting the Undertakings is not likely to:

(a)cause financial detriment to any employee covered by the Agreement; or

(b)result in substantial changes to the Agreement.

Pursuant to s.190(3) of the Act, I accept the Undertakings.

Subject to the Undertakings, and on the basis of the materials before the Commission, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 of the Act as are relevant to the application for approval of the Agreement have been met.

The Construction, Forestry, Maritime, Mining and Energy 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 the organisation.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 15 April 2022. The nominal expiry date of the Agreement is 30 June 2024.

For the purposes of publication, the signature page of the Agreement has been redacted in part for confidentiality and as the Agreement, when made, did not contain the redacted details.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

In the matter of Hansen Yuncken Pty Ltd, the applicant, applied for the approval of an enterprise agreement under section 185 of the Fair Work Act 2009. The applicant, Hansen Yuncken Pty Ltd, sought approval for the Hansen Yuncken Pty Ltd (Tasmania) Agreement 2021 – 2024. The agreement was intended to cover the building services sector in Tasmania and was proposed to be a single enterprise agreement. The dispute primarily revolved around the compliance of the application with specific regulatory requirements, particularly concerning the signature page and the timeliness of the application. The Commission also had to consider the impact of certain undertakings provided by the employer on the overall fairness of the agreement.

The Fair Work Commission had to determine whether the application for approval of the enterprise agreement complied with the statutory requirements and whether any procedural irregularities could be waived. The Commission also needed to assess the employer's written undertakings to ensure they did not cause financial detriment to employees or result in substantial changes to the agreement. Furthermore, the Commission had to consider whether the agreement met the criteria set out in sections 186, 187, 188, and 190 of the Act, and whether it adequately covered the relevant bargaining representatives.

The Commission found that the initial application had some procedural irregularities, specifically concerning the signature page. However, it was satisfied that the irregularities did not significantly impact the overall fairness and compliance of the agreement. The Commission granted an extension for the application's timeliness and accepted the employer's undertakings, as they did not foreseeably cause financial detriment to employees or lead to substantial changes in the agreement. The Commission concluded that the agreement met all necessary criteria and was fair, thus approving the agreement. The agreement is set to operate from 15 April 2022, with a nominal expiry date of 30 June 2024.

The Commission approved the Hansen Yuncken Pty Ltd (Tasmania) Agreement 2021 – 2024 and determined it would come into effect from 15 April 2022. The Commission noted that the agreement would cover the relevant bargaining representatives and would operate until its nominal expiry date of 30 June 2024. The signature page of the agreement, for publication purposes, has been redacted to maintain confidentiality and due to the absence of certain details when the agreement was made.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established