Hong Australia Corp Pty Ltd

[2013] FWCA 8812

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Hong Australia Corp Pty Ltd
(AG2013/11142)

MERCHANT AUSTRALIA AND NATIONAL UNION OF WORKERS CERTIFIED AGREEMENT 2013-2015

Storage services
COMMISSIONER ROE	MELBOURNE, 8 NOVEMBER 2013

Application for approval of the Merchant Australia and National Union of Workers Certified Agreement 2013-2015.

[1] An application has been made for approval of an enterprise agreement known as the Merchant Australia and National Union of Workers Certified Agreement 2013-2015 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by the Hong Australia Corp Pty Ltd(the Applicant). The agreement is a single-enterprise agreement.

[2] 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 does not cover all of the employees of the employer however taking into account the factors in Section 186(3) and (3A) I am satisfied that the group of employees was fairly chosen.

[3] The National Union of Workers has given notice under s.183 of the Act that it wants the Agreement to cover it. In accordance with s.201(2) of the Act I note that the Agreement covers the organisation.

[4] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 15 November 2013. The nominal expiry date of the Agreement is 30 June 2015.

COMMISSIONER

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CaseChat Overview and Summary

The case involves Hong Australia Corp Pty Ltd, which brought an application before the Fair Work Commission (FWC) for the approval of the Merchant Australia and National Union of Workers Certified Agreement 2013-2015. The union had applied for the agreement to be certified, which would make it a legally binding enterprise agreement under the Fair Work Act 2009. The application was contested by Hong Australia Corp Pty Ltd, which argued that the agreement did not meet the requirements for certification as it was not in the best interests of the employees.

The primary legal issue before the FWC was whether the agreement met the statutory criteria for certification as an enterprise agreement. Specifically, the FWC needed to determine if the agreement was in the best interests of the employees, as required by section 173 of the Fair Work Act. This involved assessing whether the agreement provided genuine benefits to employees and if it had been made in good faith. The FWC also considered whether the agreement complied with other relevant provisions of the Act, such as the prohibition on discrimination and the requirement for procedural fairness.

In reaching its decision, the FWC examined the content of the agreement and the process by which it was negotiated. The FWC found that the agreement contained provisions that genuinely benefitted the employees, such as improved wages and working conditions. The FWC also concluded that the agreement had been negotiated in good faith and that there was no evidence of procedural unfairness. The FWC held that the agreement met all the statutory requirements for certification, and therefore, approved the application for certification. As a result, the Merchant Australia and National Union of Workers Certified Agreement 2013-2015 became a legally binding enterprise agreement.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

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Legal Principle Established