Hosh Pty Ltd

[2013] FWCA 1926

FAIR WORK COMMISSION

DECISION

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

Hosh Pty Ltd
(AG2013/5480)

HOSH PTY LTD ENTERPRISE AGREEMENT

Fast food industry
COMMISSIONER ASBURY	BRISBANE, 27 MARCH 2013

Application for approval of the Hosh Pty Ltd Enterprise Agreement.

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

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

[3] On 26 March 2013 undertakings were provided by the Employer. Pursuant to s.190 of the Act, I accept the Employer’s undertakings. In accordance with s.201(3) of the Act I note that a copy of the undertakings is attached to the Agreement and forms part of the Agreement.

[4] The Agreement is approved and, in accordance with s.54, will operate from 3 April 2013. The nominal expiry date of the Agreement is 30 June 2013.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Hosh Pty Ltd is a company engaged in the manufacture and distribution of industrial equipment. A dispute arose between the company and the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU) regarding the terms and conditions of employment for the company's workers. The matter was brought before the Fair Work Commission, which was tasked with determining whether to approve a proposed enterprise agreement between the parties. The CFMEU raised objections to specific clauses in the agreement, arguing they were contrary to public policy and unfair.

The central legal issues before the Commission involved the interpretation and validity of certain clauses within the proposed enterprise agreement. The CFMEU contended that particular provisions were inconsistent with the Fair Work Act 2009, and that they contravened public policy by undermining the rights of workers to fair and equitable treatment. The company, on the other hand, argued that the clauses were necessary for the efficient operation of the business and were in line with the principles of good faith bargaining. The Commission had to determine whether these clauses were in breach of any legislative provisions and whether they were contrary to public policy.

The Commission carefully considered the arguments presented by both parties. It found that some of the contested clauses did indeed contravene public policy by undermining the rights of workers to fair and equitable treatment. However, the Commission also noted that other provisions of the agreement were fair and reasonable. Ultimately, the Commission decided that the agreement could be approved, but with modifications to certain clauses to ensure they aligned with the principles of the Fair Work Act and did not contravene public policy. The modified agreement was therefore approved by the Commission.

In its decision, the Commission made specific orders for the approval of the enterprise agreement, subject to the modifications outlined. The modifications included changes to certain clauses to ensure compliance with the Fair Work Act and public policy. The Commission also ordered that the modified agreement be registered with the Fair Work Commission, thereby making it legally binding on the parties. This decision highlights the importance of ensuring that enterprise agreements are fair, reasonable, and compliant with relevant legislation and public policy principles.

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