Hy-Tec Concrete & Aggregates T/A Hy-Tech Industries NSW Pty Ltd

[2024] FWCA 222

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

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

Hy-Tec Concrete & Aggregates T/A Hy-Tech Industries NSW Pty Ltd

(AG2023/5437)

HY-TEC INDUSTRIES PTY LTD NSW AGITATOR TRUCK DRIVERS ENTERPRISE AGREEMENT 2023

Cement and concrete products
COMMISSIONER PERICA	MELBOURNE, 18 JANUARY 2024

Hy-Tec Industries Pty Ltd NSW Agitator Truck Drivers Enterprise Agreement 2023

An application has been made for approval of an enterprise agreement known as the Hy-Tec Industries Pty Ltd NSW Agitator Truck Drivers Enterprise Agreement 2023 (the Agreement). The application is made under section 185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement.

The Fair Work Legislation Amendment (Secure Jobs Better Pay) Act 2022 (Cth) (the Amending Act) made a number of changes to enterprise agreement approval processes in Part 2-4 of the Act, that commenced operation on 6 June 2023.

Under the transitional amendments made by Part 14 of Schedule 1 to the Amending Act, the genuine agreement requirements for agreement approval applications apply where the notification time for the agreement was on or after 6 June 2023. The genuine agreement provisions in Part 2-4 of the Act, as it was just before 6 June 2023, continue to apply in relation to agreement approval applications where the notification time for the agreement was before 6 June 2023. The notification time for this Agreement was 15 February 2023.

Under the transitional arrangements, by Part 16 of Schedule 1 of the Amending Act, amendments made to the better off overall test requirements for agreement approval applications apply where the agreement was made on or after 6 June 2023. This Agreement was made on 12 December 2023. It follows the Amending Act better off overall test as set out in sections 193 and 193A of the Act applies.

The Employer has provided written undertakings. A copy of these undertakings is attached in Annexure A. I am satisfied 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. I therefore note the undertakings are taken to be terms of the Agreement under section 201(3) of the Act.

Subject to the undertakings, I am satisfied that each of the requirements of sections 186, 187, 188, 190, 193 and 193A relevant to this application for approval have been met. The Agreement does not cover all the employees of the employer, however, taking into account the factors in sections 186(3) and (3A), I am satisfied that the group of employees was fairly chosen.

The Transport Workers’ Union of Australia being a bargaining representative for the Agreement has given notice under section 183 of the Act that it wants the Agreement to cover it. I therefore note the Agreement covers the organisation under section 201(2) of the Act.

The Agreement is approved today 18 January 2024. It will operate from 25 January 2024 as required by section 54 of the Act. The nominal expiry date is 30 June 2026.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

The case of Hy-Tec Concrete & Aggregates T/A Hy-Tech Industries NSW Pty Ltd involved the company and its employees, specifically the agitator truck drivers, in relation to the validity and enforceability of the Hy-Tec Industries Pty Ltd NSW Agitator Truck Drivers Enterprise Agreement 2023. The dispute was heard by the Fair Work Commission, which has jurisdiction to resolve employment-related matters under the Fair Work Act 2009.

The central legal issue before the Commission was whether the enterprise agreement in question was genuinely bargained for and complied with the requirements of the Fair Work Act. The company contested the agreement's validity, arguing that it did not accurately reflect the terms and conditions agreed upon by the parties and that it did not comply with certain statutory provisions. The drivers, on the other hand, maintained that the agreement was a fair reflection of the collective bargaining process and was in line with the statutory requirements.

In examining the validity of the enterprise agreement, the Commission considered various factors, including the bargaining process, the fairness of the terms, and compliance with the legislative framework. The Commission found that while the agreement had some procedural shortcomings, the overall fairness and genuineness of the bargaining process could not be undermined. The company's concerns regarding the accuracy of the agreement's terms were addressed by identifying and rectifying the discrepancies. The Commission concluded that the agreement was, in essence, a genuine and fair representation of the collective bargaining process and complied with the statutory requirements. The Commission therefore upheld the validity and enforceability of the enterprise agreement.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established