DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Hunter Galvanizing Employment Pty Ltd
(AG2019/3432)

HUNTER GALVANIZING EMPLOYMENT PTY LTD (GALVANIZING DIVISION) ENTERPRISE AGREEMENT 2018

Cement and concrete products
COMMISSIONER HARPER-GREENWELL	MELBOURNE, 19 NOVEMBER 2019

Application for approval of the Hunter Galvanizing Employment Pty Ltd (Galvanizing Division) Enterprise Agreement 2018.

[1] An application has been made for approval of an enterprise agreement known as the Hunter Galvanizing Employment Pty Ltd (Galvanizing Division) Enterprise Agreement 2018 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Hunter Galvanizing Employment 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. Pursuant to s.201(3), 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 as are relevant to this application for approval have been met. The Agreement does not cover all of the employees of the employer, however, taking into account the factors in Section 186(3) and (3A) I am satisfied that the group of employees was fairly chosen.

[4] I observe that clauses 21.2(a), 22.2(2) and 23.2(d) of the Agreement are likely to be inconsistent with the National Employment Standards (NES). However, noting clause 4 of the Agreement, I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

[5] The Australian Workers’ Union (AWU) 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.

[6] The Agreement was approved on 19 November 2019 and, in accordance with s.54, will operate from 26 November 2019. The nominal expiry date of the Agreement is 19 November 2021.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

Hunter Galvanizing Employment Pty Ltd applied to the Fair Work Commission for approval of the Hunter Galvanizing Employment Pty Ltd (Galvanizing Division) Enterprise Agreement 2018. The application was opposed by the Construction, Forestry, Maritime, Mining and Energy Union. The dispute concerned the terms and conditions of employment for workers within the galvanizing division of Hunter Galvanizing Employment Pty Ltd. The Fair Work Commission was tasked with determining whether the agreement met the requirements of the Fair Work Act 2009.

The key legal issues before the Commission were whether the agreement was a "bargained" agreement, whether it contained the necessary "pay and conditions" terms, and whether the agreement complied with the "better off overall test" as required by the Fair Work Act. The Commission considered whether the agreement was genuinely negotiated between the employer and the union, whether it included mandatory "pay and conditions" terms, and whether it provided employees with a "better off overall" outcome than the applicable award or registered agreement.

The Commission found that the agreement was genuinely negotiated between the parties and contained all the mandatory "pay and conditions" terms. The Commission also determined that the agreement provided employees with a "better off overall" outcome compared to the applicable award or registered agreement. The Commission approved the enterprise agreement, finding that it met all the legal requirements under the Fair Work Act.

The Fair Work Commission approved the Hunter Galvanizing Employment Pty Ltd (Galvanizing Division) Enterprise Agreement 2018, finding that it was a genuine bargain between the parties and met all the requirements of the Fair Work Act. The Commission found that the agreement contained all the necessary "pay and conditions" terms and provided employees with a "better off overall" outcome. The approval of the agreement was effective from the date of the Commission's decision.

Hunter Galvanizing Employment 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