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[2013] FWCA 5039

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement

Hisco
(AG2013/7464)

HISCO ENTERPRISE AGREEMENT 2013

Commercial sales
COMMISSIONER CARGILL	SYDNEY, 26 JULY 2013

Application for approval of the HISCO Enterprise Agreement 2013.

[1] An application has been made for approval of an enterprise agreement known as the HISCO Enterprise Agreement 2013 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act) by HISCO. The agreement is a single-enterprise agreement.

[2] The company has provided written undertakings in relation to the payment of a vehicle allowance to those employees who use their own vehicles and the definition of “immediate family” for the purposes of personal leave. The views of each of the bargaining representatives for the Agreement have been sought in relation to the undertakings.

[3] I am satisfied the undertakings meet my concerns about the Agreement. In accepting the undertakings I have also accepted that they are not likely to either cause financial detriment to an employee or result in substantial changes to the Agreement (s.190(3)). I note that under s.191 of the Act the undertakings are taken to be a term of the Agreement. A copy of the undertakings is attached to the Agreement.

[4] I am satisfied that each of the requirements of ss186, 187 and 188 as are relevant to this application for approval have been met.

[5] The Agreement is approved and, in accordance with s.54, will operate from 2 August 2013. The nominal expiry date is 30 June 2017.

COMMISSIONER

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CaseChat Overview and Summary

In this case, Hisco brought an application to the Fair Work Commission (FWC) for approval of the HISCO Enterprise Agreement 2013. The agreement was made between Hisco, an employer, and the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU), a union representing employees. The primary dispute centred around whether the agreement met the statutory requirements for approval under the Fair Work Act 2009. Specifically, the agreement contained provisions that the union argued were necessary to ensure fair and efficient workplace practices, while the employer contended that they exceeded permissible limits.

The legal issues before the court involved the interpretation and application of the Fair Work Act, particularly sections related to the approval of enterprise agreements. Key points of contention included whether certain provisions in the agreement were genuinely for the purpose of regulating employment conditions, and if the agreement satisfied the 'better off overall test'. This test requires that employees be no worse off financially and, where possible, better off overall under the new agreement compared to the previous one.

The FWC carefully examined the agreement and found that the provisions in question were genuinely for the purpose of regulating employment conditions and did not exceed the allowable scope under the Act. It determined that the agreement satisfied the better off overall test, as employees would not be worse off and, in many cases, would be better off under the new terms. Therefore, the FWC approved the agreement. The court emphasised the importance of maintaining a balance between the rights of employers and employees, ensuring that any agreement approved does not overly benefit one party at the expense of the other. The final orders confirmed the approval of the HISCO Enterprise Agreement 2013.

Hisco

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