Hickory Building Systems Pty Ltd

[2025] FWCA 1724

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Hickory Building Systems Pty Ltd

(AG2025/1175)

HICKORY BUILDING SYSTEMS PTY LTD OFFSITE MODULAR AGREEMENT 2025-2029

Manufacturing and associated industries
COMMISSIONER CONNOLLY	MELBOURNE, 27 MAY 2025

Application for approval of the Hickory Building Systems Pty Ltd Offsite Modular Agreement 2025-2029

An application has been made for approval of an enterprise agreement known as the Hickory Building Systems Pty Ltd Offsite Modular Agreement 2025-2029 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act) by Hickory Building Systems Pty Ltd (the Applicant). The Agreement is a single enterprise agreement.

The matter was allocated to my Chambers on 28 April 2025.

The notification time for the Agreement under s.173(2) was 14 March 2025 and the Agreement was made on 7 April 2025. Accordingly, the genuine agreement requirements the Agreement is to be assessed under are those applying after 6 June 2023 and the better off overall test (BOOT) is that applying on and from 6 June 2023. [1]

On 7 May 2025, the Employer was invited to address aspects of the Agreement including through the provision of an undertaking.

The Applicant has provided written undertakings, dated 14 May 2025, and a copy is attached in Annexure A. No bargaining representatives were appointed.

I am satisfied that the undertaking will not cause financial detriment to any employee covered by the Agreement and that the undertaking will not result in substantial changes to the Agreement, thus appearing to meet the requirements of s.190(3). The undertaking is taken to be a term of the Agreement.

I am satisfied that each of the requirements of ss.186, 187, 188, 190, 193 and 193A 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 27 May 2029.

COMMISSIONER

Annexure A

[1] The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) made a number of changes to enterprise agreement approval processes in Part 2-4 of the Fair Work Act. Those changes broadly commenced operation on 6 June 2023, subject to various transitional arrangements that included those to effect described above.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The matter before the court was an application by Hickory Building Systems Pty Ltd to have the Hickory Building Systems Pty Ltd Offsite Modular Agreement 2025-2029 approved. This agreement was intended to regulate the relationship between the company and its customers in the context of modular building projects. The application was made under the relevant provisions of the Fair Trading Act. The primary issue before the court was whether the agreement was fair and reasonable in all its terms. This required an examination of the balance of power between the parties, the clarity of the terms, and whether any terms were unconscionable or misleading.

The court began by considering the background of the agreement and the nature of the relationship it sought to govern. It was noted that modular building agreements often involve complex transactions with significant implications for both parties. The court examined the terms of the agreement to determine whether they were clear and understandable to the average customer. It also considered whether the agreement contained any terms that were unfair or unconscionable, particularly in light of the power imbalance between a large corporation and individual customers. The court found that while some terms were complex, they were not misleading or unfair. The court was also satisfied that the agreement did not contain any unconscionable terms.

In reaching its decision, the court placed significant weight on the overall fairness of the agreement. It found that the terms were reasonable and that the agreement did not take unfair advantage of the customers. The court noted that while some terms may have been complex, they were clearly stated and not misleading. The court concluded that the agreement was fair and reasonable in all its terms and approved the agreement accordingly. The court's approval ensures that the agreement can now be used to govern the relationship between Hickory Building Systems Pty Ltd and its customers, providing certainty and clarity for all parties involved.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established