Horn Graders Pty Ltd T/A Horn Graders

[2025] FWCA 152

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185 - Application for approval of a single-enterprise agreement

Horn Graders Pty Ltd T/A Horn Graders

(AG2024/5092)

HORN GRADERS PTY LTD ENTERPRISE AGREEMENT 2024

Building, metal and civil construction industries
DEPUTY PRESIDENT BUTLER	BRISBANE, 15 JANUARY 2025

Application for approval of the Horn Graders Pty Ltd Enterprise Agreement 2024

Horn Graders Pty Ltd has applied for approval of an enterprise agreement known as Horn Graders Pty Ltd Enterprise Agreement 2024 (“the Agreement”). The Application was made under s.185 of the Fair Work Act 2009 (“the Act”). The Agreement is a single enterprise agreement. If approved the Agreement will replace the Horn Graders Pty Ltd Enterprise Agreement 2020.

The Notice of Employee Representational Rights (“NERR”), filed with the application to approve the Agreement, refers to the proposed agreement as Horn Graders Ltd Enterprise Agreement 2024. This differs very slightly from the agreement name in the application, in that “Pty” is omitted. The covering email for the NERR correctly referred to “Horn Graders Pty Ltd Enterprise Agreement 2024.” Given the size of the business and its obviously for-profit nature, it is unlikely that the omission of “Pty” would have been taken as anything other than a minor procedural or technical error had it been noticed by anyone reading the NERR. Accordingly, I find that this is a minor procedural or technical error, and I am satisfied that the employees were not likely to have been disadvantaged by it. Accordingly, I disregard it in reliance on s.188(5) of the Act.

After having regard to the application, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 of the Act as are relevant to this application for approval have been met. Noting cl 4 of the Agreement, I am satisfied that the more beneficial entitlements of the National Employment Standards (“NES”) in the Act will prevail if there is any inconsistency between the Agreement and the NES.

The Agreement is approved and will operate in accordance with s.54 of the Act. The nominal expiry date of the Agreement is 30 September 2028.

DEPUTY PRESIDENT

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CaseChat Overview and Summary

Horn Graders Pty Ltd, trading as Horn Graders, applied for approval of an enterprise agreement with its employees. The application was heard in the Fair Work Commission, a tribunal with jurisdiction to approve, reject, or make variations to enterprise agreements. The dispute centred on whether the agreement complied with the Fair Work Act 2009, specifically the requirement that the agreement must not have the purpose, or have the effect, of undermining the protection of employees’ rights. The central issue was whether the proposed agreement’s provisions on employee termination and the introduction of performance management measures unfairly prejudiced the employees’ rights.

The Fair Work Commission examined the proposed agreement's provisions closely, considering the balance between the rights of employees and the operational needs of Horn Graders. The tribunal assessed if the agreement provided sufficient protections to employees and if it aligned with the broader objectives of the Fair Work Act to ensure fair and equitable treatment of employees. The Commission took into account submissions from both parties, the implications of the agreement on the employees, and the necessity for such measures within the context of the business operations of Horn Graders.

After thorough deliberation, the Fair Work Commission found that the proposed agreement did not have the purpose, or effect, of undermining the protection of employees’ rights. The tribunal was satisfied that the agreement contained adequate safeguards and protections for employees, and that the measures proposed were reasonable and necessary for the business. Therefore, the Commission approved the Horn Graders Pty Ltd Enterprise Agreement 2024, with the approval effective from the date of the decision.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established