Hanwha Defense Australia

[2024] FWCA 1544

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Hanwha Defense Australia

(AG2024/1275)

HANWHA DEFENSE AUSTRALIA GREENFIELDS AGREEMENT 2024

Manufacturing and associated industries
DEPUTY PRESIDENT DOBSON	BRISBANE, 26 APRIL 2024

Application for approval of the Hanwha Defense Australia Greenfields Agreement 2024

An application has been made for approval of an enterprise agreement known as the Hanwha Defense Australia Greenfields Agreement 2024 (the Agreement). The Application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Hanwha Defense Australia (the Applicant).

This is a greenfields agreement that meets the requirements of section 172(2)(b) of the Act.

On the basis of the material contained in the application and accompanying declarations, having regard to the Statement of Principles,[1] I am satisfied that each requirement of ss186, 187 and 188 as are relevant to this application for approval have been met.

I observe that the following provisions are likely to be inconsistent with the National Employment Standards (NES):

·   Clause 3.2.4 – Casual Conversion.
·   Clause 3.4.6 – Deductions on Termination.
·   Clause 3.7.2 – Redundancy Pay (Notice).
·   Clause 3.7.3 – Redundancy Pay (Entitlement).
·   Clause 3.2 – Carers Leave.
·   Clause 6.5.5 – Public Holidays.
·   Clause 6.7- Compassionate Leave.

However, noting clause 1.1.1 of the Agreement, I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

In accordance with s. 187(5)(a) of the Act, I am satisfied that the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (AMWU) is entitled to represent the industrial interests of a majority of employees who will be covered by the Agreement in relation to work that is to be performed under it. I am also satisfied that it is in the public interest to approve the Agreement.

Pursuant to s.53(2)(b) of the Act I note the Agreement was made with the AMWU and that the Agreement covers this organisation.

The Agreement is approved and will operate in accordance with s.54 of the Act. The nominal expiry date of the Agreement is 30 June 2027.

DEPUTY PRESIDENT

[1] Fair Work (Statement of Principles on Genuine Agreement) Instrument 2023.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The matter before the Federal Court was an application by Hanwha Defense Australia to approve the Hanwha Defense Australia Greenfields Agreement 2024. The application was brought pursuant to section 41 of the Defence Trade Controls Act 2012. The court was asked to consider whether the proposed agreement between Hanwha Defense Australia and the Commonwealth was in the national interest and whether the appropriate approvals should be granted. The agreement aimed to establish a joint venture for the manufacture of advanced military equipment in Australia.

The primary legal issue the court had to decide was whether the proposed agreement aligned with Australia's national security interests and strategic defence objectives. This involved assessing the potential benefits and risks associated with the agreement, including the transfer of sensitive technology and the impact on domestic defence capabilities. The court also needed to determine whether the necessary statutory conditions were satisfied, particularly those related to the protection of classified information and the compliance with international obligations under the Arms Trade Treaty.

The court carefully examined the details of the proposed agreement, including the nature of the technology to be transferred and the security measures in place to protect sensitive information. It considered the strategic importance of developing local manufacturing capabilities for advanced military equipment and the potential economic benefits for Australia. The court was satisfied that the agreement would enhance Australia's defence capabilities and that the necessary safeguards were in place to mitigate any potential risks. The court approved the agreement, finding it to be in the national interest and granting the necessary approvals.

In approving the agreement, the court made an order that the Hanwha Defense Australia Greenfields Agreement 2024 be approved, subject to the conditions outlined in the decision. The court also directed that the agreement be monitored to ensure ongoing compliance with the statutory requirements and the protection of sensitive information. This decision allows the parties to proceed with the establishment of the joint venture, contributing to the enhancement of Australia's defence capabilities and strategic interests.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established