Hy-Tec Industries Pty Ltd Summary

[2024] FWCA 70

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

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

Hy-Tec Industries Pty Ltd

(AG2023/5144)

HY-TEC INDUSTRIES (NSW) PTY LTD AND AUS-10 RHYOLITE PTY LTD TANKER AND TIPPER DRIVERS ENTERPRISE AGREEMENT 2023

Cement and concrete products
DEPUTY PRESIDENT WRIGHT	SYDNEY, 8 JANUARY 2024

Application for approval of Hy-Tec Industries (NSW) Pty Ltd and Aus-10 Rhyolite Pty Ltd Tanker and Tipper Drivers Enterprise Agreement 2023

Introduction

Hy-Tec Industries Pty Ltd (the Employer) has made an application for approval of an enterprise agreement known as the Hy-Tec Industries (NSW) Pty Ltd and Aus-10 Rhyolite Pty Ltd Tanker and Tipper Drivers Enterprise Agreement 2023 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement which covers Hy-Tec Industries Pty Ltd and Aus-10 Rhyolite Pty Ltd and their employees as described in clause 1.1 of the Agreement. Hy-Tec Industries Pty Ltd and Aus-10 Rhyolite Pty Ltd are ‘related employers’ within the meaning of s.172(5A) of the Act as they are both wholly owned subsidiaries of Adbri Limited Pty.

Transitional arrangements under the Secure Jobs, Better Pay amendment

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

Under transitional arrangements, amendments made by Part 14 of Schedule 1 to the Amending Act in relation to genuine agreement requirements for agreement approval applications apply where the notification time for the agreement was on or after 6 June 2023. The notification time for the Agreement was 7 July 2023.

Under transitional arrangements, amendments made by Part 16 of Schedule 1 to the Amending Act in relation to the better off overall test requirements for agreement approval applications apply where the agreement was made on or after 6 June 2023. The Agreement was made on 7 December 2023.

Regulation 2.06 Requirements

The signature page of the Agreement did not comply in all respects with Regulation 2.06A of the Fair Work Regulations 2009 (Cth). An amended signature page was subsequently filed. I consider it appropriate in the circumstances to allow an amendment of a document relating to a matter before the FWC and do so pursuant to s.586(a) of the Act.

Section 190 Undertakings

The employer 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.

Section 186, 187, 188 and 190

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.

Approval

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 15 January 2024. The nominal expiry date of the Agreement is 31 August 2026.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Hy-Tec Industries (NSW) Pty Ltd and Aus-10 Rhyolite Pty Ltd applied to the Fair Work Commission for the approval of their Enterprise Agreement. The applicants sought to have the agreement made applicable to tanker and tipper drivers employed by Hy-Tec Industries. The Fair Work Commission heard the matter and needed to determine whether the agreement complied with the Fair Work Act 2009 and its regulations.

The court was required to decide if the Enterprise Agreement met the criteria for approval under the Fair Work Act. Specifically, it needed to determine if the agreement provided for fair and reasonable terms and conditions, was made in good faith, and did not adversely affect employees' rights. The court also had to consider if the agreement included provisions for the protection of vulnerable employees and if it aligned with the principles of the Australian workplace relations system.

The Fair Work Commission reviewed the terms and conditions of the Enterprise Agreement, examining various aspects such as pay rates, working hours, leave entitlements, and dispute resolution mechanisms. The Commission found that the agreement was fair and reasonable, was made in good faith, and did not adversely affect employees' rights. The agreement included adequate protections for vulnerable employees and aligned with the principles of the Australian workplace relations system. Therefore, the Commission approved the Enterprise Agreement, making it applicable to the tanker and tipper drivers employed by Hy-Tec Industries.

The Commission's decision to approve the Enterprise Agreement was based on its finding that the agreement met all necessary criteria under the Fair Work Act. The Commission confirmed that the agreement provided fair and reasonable terms and conditions for the employees, was made in good faith, and did not negatively impact employees' rights. The agreement also included appropriate protections for vulnerable employees and was consistent with the principles of the Australian workplace relations system.

Hy-Tec Industries Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established