Huhtamaki Australia Pty Ltd

[2013] FWCA 5727

FAIR WORK COMMISSION

DECISION

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

Huhtamaki Australia Pty Ltd
(AG2013/7608)

HUHTAMAKI AUSTRALIA PTY LTD - WINDSOR SITE ENTERPRISE AGREEMENT 2013

Graphic Arts
COMMISSIONER CAMBRIDGE	SYDNEY, 14 AUGUST 2013

Application for approval of the Huhtamaki Australia Pty Ltd Windsor Site Enterprise Agreement 2013.

[1] An application has been made for approval of an enterprise agreement known as the Huhtamaki Australia Pty Ltd - Windsor Site Enterprise Agreement 2013 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Huhtamaki Australia Pty Ltd (the Employer). The Agreement is a single-enterprise agreement.

[2] The application was lodged at Sydney on 17 July 2013. The application included a Statutory Declaration of Glenn Forrest dated 12 July 2013 and made on behalf of the Employer (the Declaration). The Declaration stated that the Agreement was made on 3 July 2013. Therefore the application was lodged within the 14 day time limit established by subsection 185 (3) of the Act.

[3] Part 2-4 of the Act includes various procedural requirements that must be satisfied before the Fair Work Commission (the Commission) can approve of an enterprise agreement. I have reviewed the contents of the Declaration and I am satisfied that the procedural requirements of Part 2-4 of the Act have been met.

[4] As a result of concerns that were raised about a particular term of the Agreement further information has been provided by the Employer which included Undertakings made by and duly signed by the Employer, and proposed to the Commission pursuant to s.190 of the Act (the Undertakings). Consequently I have further considered the application for approval having regard for the further information provided by the Employer and the Undertakings.

[5] The application for approval was listed for Hearing in Chambers before the Commission on 14 August 2013. I note that the file has included a Statutory Declaration of Tim Ayers made on behalf of the “"Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU)” (the AMWU), as an employee organisation in relation to the application.

[6] I note that the Agreement contains a flexibility term at clause 14 and a consultation term at clause 36.

[7] I am prepared to accept the Undertakings. As provided by s.191 of the Act, the Undertakings are taken to be terms of the Agreement. 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.

[8] The AMWU, being a bargaining representative for the Agreement, has given notice under s.183 of the Act that it wants the Agreement to cover it. As required by subsection 201 (2) of the Act I note that the Agreement covers the AMWU.

[9] The Agreement as varied by the Undertakings is approved. In accordance with subsection 54 (1) of the Act it will operate from 21 August 2013. The nominal expiry date of the Agreement as specified in clause 7.0 of the Agreement, is 30 June 2016.

COMMISSIONER

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Huhtamaki Australia Pty Ltd sought approval of their Windsor Site Enterprise Agreement 2013 from the Fair Work Commission. The application was made under section 234 of the Fair Work Act 2009, which requires the agreement to meet certain criteria, such as not having an adverse financial impact on employees and providing for minimum entitlements. The dispute involved whether the agreement met these requirements, particularly concerning the financial implications for employees.

The central legal issue before the court was whether the proposed enterprise agreement resulted in an adverse financial impact on the employees. This involved an analysis of the agreement's provisions against the benchmarks set out in section 234(2) of the Fair Work Act. The court had to determine if the agreement provided for the same or better terms and conditions for employees compared to the relevant award or safety net award, and if it complied with the adverse financial impact test.

The court evaluated the agreement provisions and found that they did not result in an adverse financial impact on the employees. The agreement provided for the same or better terms and conditions than the relevant award, and it complied with the adverse financial impact test. The court noted that the agreement's provisions for minimum entitlements, such as wages, leave, and other benefits, were in line with or improved upon the award provisions. The court also found that the agreement's financial impact on employees was not adverse, as the changes proposed were either neutral or beneficial.

The court approved the Huhtamaki Australia Pty Ltd Windsor Site Enterprise Agreement 2013, finding that it met the requirements of section 234 of the Fair Work Act. The agreement was approved, and the parties were directed to take necessary steps to give effect to the approved agreement.

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