Hy-Tec Industries Victoria Pty Ltd Summary

[2023] FWCA 2040

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

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

Hy-Tec Industries Victoria Pty Ltd

(AG2023/2065)

HY-TEC INDUSTRIES VICTORIA PTY LTD AND THE AUSTRALIAN WORKERS' UNION ("AWU") ENTERPRISE AGREEMENT 2022

Building, metal and civil construction industries
DEPUTY PRESIDENT WRIGHT	SYDNEY, 4 JULY 2023

Application for approval of the Hy-Tec Industries Victoria Pty Ltd and the Australian Workers' Union ("AWU") Enterprise Agreement 2022

Introduction

Hy-Tec Industries Victoria Pty Ltd (the Employer) has made an application for approval of an enterprise agreement known as the Hy-Tec Industries Victoria Pty Ltd and the Australian Workers' Union ("AWU") Enterprise Agreement 2022 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement.

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 genuine agreement provisions in Part 2-4 of the Fair Work 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 the Agreement was before 6 June 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 better off overall test provisions in Part 2-4 of the Fair Work Act, as it was just before 6 June 2023, continue to apply in relation to agreement approval applications where the agreement was made before 6 June 2023. The Agreement was made after 6 June 2023.

Notification of time, place and method of vote

Voting for the Agreement took place on 9 June 2023. The Employer advised employees of the date and method of vote by the start of the access period, but not the time or place as required by s.180(3)(a) of the Act. The Employer advised the Commission that the union delegates verbally notified employees that a union delegate and management representative would attend each site on the date of the vote so that employees could cast their vote. It appears that employees had knowledge of the time and place of the vote prior to the vote occurring but that this was conveyed by the union representatives rather than the Employer. The Form F17A Employer’s declaration indicates at paragraph 27 that 20 employees were covered by the agreement at the time of the vote and that 19 of these employees cast a valid vote.

I am satisfied having regard to the Employer’s submissions, the Form F17A Employer’s declaration and the decision of the Full Bench in Huntsman Chemical Company Australia Pty Limited T/A RMAX Rigid Cellular Plastics & Others,¹ that this matter constituted a minor procedural error for the purposes of s.188(2)(a) of the Act, and that the employees covered by the Agreement were not likely to have been disadvantaged by the errors.

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.

Section 183 Bargaining Representatives

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 AWU.

Approval

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 11 July 2023. The nominal expiry date of the Agreement is 1 September 2025.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

The applicant, Hy-Tec Industries Victoria Pty Ltd, sought approval of an enterprise agreement with the Australian Workers' Union (AWU). The application was made to the Fair Work Commission (FWC), which was required to determine whether the agreement met the necessary criteria under the Fair Work Act 2009 (Cth). The FWC was tasked with assessing the agreement against the requirements for certification, including ensuring it provided for the safety of employees, was made in good faith, and was not contrary to public policy. Additionally, the FWC had to consider the fairness and appropriateness of the terms and conditions of the agreement, ensuring they were in line with the principles of the Act.

The primary legal issue was whether the enterprise agreement met the certification criteria under section 231 of the Act. This involved examining whether the agreement provided for the safety of employees, was made in good faith, and was not contrary to public policy. The FWC also needed to consider whether the agreement was fair and appropriate, taking into account the economic circumstances of the enterprise and the overall impact on the employees. The applicant argued that the agreement was fair and reasonable, while the AWU supported the application, asserting that the agreement adequately represented the interests of the employees.

In its decision, the FWC determined that the enterprise agreement did meet the necessary certification criteria. The FWC found that the agreement provided for the safety of employees, was made in good faith, and did not contravene public policy. The FWC also concluded that the agreement was fair and appropriate, considering the economic circumstances of the enterprise and the interests of the employees. The FWC approved the agreement, noting that it appropriately balanced the interests of the employer and the employees, and was in line with the principles of the Act.

The final orders of the FWC were that the enterprise agreement between Hy-Tec Industries Victoria Pty Ltd and the AWU be approved and certified under section 231 of the Fair Work Act 2009 (Cth). The agreement was to be registered with the Commission, effective from the date of the decision.

Hy-Tec Industries Victoria Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established