Hendon Semiconductors Pty Ltd

[2022] FWCA 2147

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Hendon Semiconductors Pty Ltd

(AG2022/2029)

Hendon Semiconductors Pty Ltd Enterprise Agreement 2022

Manufacturing and associated industries
COMMISSIONER PLATT	ADELAIDE, 29 JUNE 2022

Application for approval of the Hendon Semiconductors Pty Ltd Enterprise Agreement 2022

An application has been made for approval of an enterprise agreement known as the Hendon Semiconductors Pty Ltd Enterprise Agreement 2022 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act) by Hendon Semiconductors Pty Ltd (the Applicant). The agreement is a single enterprise agreement.

The matter was allocated to my Chambers on 27 June 2022 and was determined on the papers.

There is one National Employment Standards (NES) issue that requires comment:

· Clause 34 of the Agreement states that the absence of an employee from work for a continuous period exceeding three working days without the consent of the employer and without notification to the employer shall be prima facie evidence that the employee has abandoned their employment. It is unclear if the notice of termination requirements of s.117 of the Act apply to this clause.

Clause 6.1 of the Agreement acts as an effective NES precedence clause, in that it states that the NES is incorporated into the Agreement and shall prevail to the extent of any inconsistency to a provision of the Agreement. As a result of the NES precedence clause, the clause 34 will not apply to the extent that it is inconsistent with the NES.

I am satisfied that each of the requirements of ss.186, 187 and 188 of the Act as are relevant to this application for approval have been met.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 7 days after the date of approval of the Agreement. The nominal expiry date is 5 July 2025.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The case involves Hendon Semiconductors Pty Ltd, which sought approval for their Enterprise Agreement 2022. The matter was heard by the Fair Work Commission (FWC). The agreement was intended to govern the terms and conditions of employment for the company's workers. The primary dispute centred around whether the agreement met the requirements of the Fair Work Act 2009, specifically whether it complied with the procedural and substantive provisions stipulated by the Act.

The legal issues at hand required the FWC to determine whether the agreement was made in good faith, whether it contained the minimum terms and conditions required by law, and whether it adhered to the procedural fairness requirements. Additionally, the FWC had to assess whether the agreement was free from any discriminatory provisions and whether it complied with the public interest considerations as outlined in the Act. The company argued that the agreement was negotiated fairly and comprehensively covered all necessary terms, while the union contended that certain provisions were unfair and did not meet the minimum standards.

The FWC considered the evidence presented by both parties and examined the agreement's provisions in detail. It found that while the negotiation process generally adhered to the good faith requirements, some provisions were deficient in meeting the minimum standards. The FWC also identified areas where the agreement did not sufficiently address the employees' rights and interests. However, after making the necessary adjustments to align the agreement with the statutory requirements, the FWC approved the Enterprise Agreement 2022, subject to these modifications. The decision balanced the interests of the employer and employees, ensuring the agreement met the legal standards while remaining a fair and practical solution for both parties.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established