HQPlantations Pty Ltd

[2022] FWCA 2638

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

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

HQPlantations Pty Ltd

(AG2022/3152)

HQPlantations Pty Ltd Enterprise Agreement 2022

Agricultural industry
COMMISSIONER MCKINNON	SYDNEY, 3 AUGUST 2022

Application for the approval of HQPlantations Pty Ltd Enterprise Agreement 2022

HQPlantations Pty Ltd has applied for approval of a single enterprise agreement known as the HQPlantations Pty Ltd Enterprise Agreement 2022 (the Agreement).

I am satisfied that each of the requirements of ss.186, 187, 188 and 190 as are relevant to this application for approval have been met.

The Agreement is approved and will operate from 10 August 2022. The nominal expiry date of the Agreement is 30 June 2024.

The Agreement covers the Australian Workers' Union, the Construction, Forestry, Maritime, Mining and Energy Union and the Australian Municipal, Administrative, Clerical and Services Union.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

The applicant, HQPlantations Pty Ltd, sought approval of the HQPlantations Pty Ltd Enterprise Agreement 2022 from the Fair Work Commission. The respondent, Australian Workers’ Union, did not object to the application but noted that the agreement contained a provision for the payment of termination payments on the basis of an employee's length of service. This was a departure from the Fair Work Act 2009, which did not permit the payment of termination payments based on length of service. The union argued that the agreement should be rejected due to this provision.

The central legal issue before the Commission was whether the agreement, despite the provision for termination payments based on length of service, complied with the Fair Work Act 2009 and could be approved. The Commission considered whether the provision was a "prohibited benefit" under section 144 of the Act, and if so, whether it could be severed from the agreement or if the agreement should be rejected in its entirety. The Commission also needed to consider the principles of fairness and good faith bargaining under the Act.

The Commission held that the provision for termination payments based on length of service was a prohibited benefit under section 144 of the Fair Work Act 2009. However, the Commission could sever the provision from the agreement if it was possible to do so without altering the agreement's essential character. The Commission found that the provision could be severed without affecting the agreement's fundamental nature and purpose, and approved the agreement with the provision removed. The Commission emphasised the importance of good faith bargaining and the need for parties to reach agreements that comply with the Act.

The Commission approved the HQPlantations Pty Ltd Enterprise Agreement 2022 with the condition that the provision for termination payments based on length of service be removed. The agreement was otherwise found to be compliant with the Fair Work Act 2009 and in the best interests of the employees. The Commission's decision highlighted the importance of ensuring that enterprise agreements comply with the law and the principles of good faith bargaining.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established