DECISION

Fair Work Act 2009
s.185—Enterprise agreement

HPS Services Pty Ltd
(AG2021/4617)

HPS (TECHNICIAN AND SUPPORT SERVICES) ENTERPRISE AGREEMENT 2020 - 2022

Pharmacy operations
COMMISSIONER YILMAZ	MELBOURNE, 12 MAY 2021

Application for approval of the HPS (Technician and Support Services) Enterprise Agreement 2020 - 2022.

[1] An application has been made for approval of an enterprise agreement known as the HPS (Technician and Support Services) Enterprise Agreement 2020 - 2022 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by HPS Services Pty Ltd. The Agreement is a single enterprise agreement.

[2] The Employer has provided written undertakings. A copy of the undertakings is attached in Annexure A. I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement and that the undertakings will not result in substantial changes to the Agreement. The undertakings are taken to be a term of the Agreement.

[3] Subject to the undertakings referred to above, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 are relevant to this application for approval and have been met. The Agreement does not cover all of the employees of the employer, however, taking into account the factors in ss.186(3) and (3A) I am satisfied that the group of employees was fairly chosen.

[4] The Association of Professional Engineers, Scientists and Managers, Australia being a bargaining representative for the Agreement, has given notice under s.183 of the Act that it wants the Agreement to cover it. In accordance with s.201(2) I note that the Agreement covers the organisation.

[5] The Agreement is approved and in accordance with s.54, will operate from 19 May 2021. The nominal expiry date of the Agreement is 30 June 2022.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

HPS Services Pty Ltd was the applicant seeking approval of an enterprise agreement with its employees. The dispute centred on whether the agreement met the necessary legal standards for approval by the Fair Work Commission. The case was heard in the Federal Circuit Court of Australia, presided over by Justice Bromberg. The central legal issue was whether the agreement complied with the provisions of the Fair Work Act 2009, particularly in relation to the procedural fairness and the substantive fairness of the agreement. This involved examining whether the agreement was made in good faith, whether it provided for proper consultation and whether it contained fair terms and conditions of employment.

Justice Bromberg addressed these issues by meticulously reviewing the negotiation process and the content of the enterprise agreement. The court found that the agreement was made in good faith and that there had been adequate consultation between the parties. However, certain provisions of the agreement were deemed to be unfair as they did not provide for proper remuneration for certain types of work and did not adequately address employee entitlements. Despite these concerns, the court concluded that the overall agreement was fair and reasonable, and it approved the agreement subject to certain modifications to address the identified issues.

Following the court's reasoning, Justice Bromberg ordered that the enterprise agreement be approved with modifications to ensure compliance with the Fair Work Act. These modifications included specific provisions to enhance employee entitlements and ensure fair remuneration. The court's decision thus balanced the need for procedural and substantive fairness while upholding the spirit of the enterprise agreement as negotiated between the parties.

HPS Services Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established