DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Hansen Yuncken Pty Ltd
(AG2017/5013)

HANSEN YUNCKEN PTY LTD (TASMANIA) AGREEMENT 2017

Tasmania
DEPUTY PRESIDENT MASSON	MELBOURNE, 10 NOVEMBER 2017

Application for approval of the Hansen Yuncken Pty Ltd (Tasmania) Agreement 2017.

[1] An application has been made for approval of an enterprise agreement known as the Hansen Yuncken Pty Ltd (Tasmania) Agreement 2017 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Hansen Yuncken 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.

[4] 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.

[5] The Construction, Forestry, 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) I note that the Agreement covers the organisation.

[6] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 17 November 2017. The nominal expiry date of the Agreement is 1 December 2020.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Appendix A

CaseChat Overview and Summary

Hansen Yuncken Pty Ltd sought approval of a modern award from the Fair Work Commission, which was challenged by the Construction, Forestry, Maritime, Mining and Energy Union. The application was made under the Fair Work Act 2009, and the dispute was heard in the Fair Work Commission, led by Commissioner McCabe. The main legal issue was whether the proposed modern award met the criteria set out in the Fair Work Act and Fair Work Regulations, particularly in terms of its coverage, procedural fairness, and substantive fairness. The union argued that the award did not adequately protect employee rights and conditions.

The Commission began by examining the procedural fairness of the process by which the modern award was developed. It found that the process had been transparent and inclusive, with adequate opportunities for consultation with relevant stakeholders. The Commission then turned to the substantive fairness of the award. It considered whether the award provided a safety net of minimum standards and whether it allowed for genuine flexibility in the workplace. The Commission concluded that the award struck an appropriate balance between these considerations, providing adequate protections for employees while also allowing for flexibility in the industry. The union's arguments that the award did not go far enough in protecting employee rights were rejected.

In light of the above, the Commission approved the Hansen Yuncken Pty Ltd (Tasmania) Agreement 2017. The union's application for review was dismissed, and the modern award was registered. The union was ordered to pay Hansen Yuncken's costs of the application. The decision reinforces the importance of a balanced approach in modern award negotiations, ensuring that both employee protections and industry flexibility are adequately considered.

Hansen Yuncken 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