Hydro Australia Pty Ltd Summary

[2024] FWCA 3102

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

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

Hydro Australia Pty Ltd

(AG2024/2745)

HYDRO AUSTRALIA PTY LTD - ENTERPRISE BARGAINING AGREEMENT 2024-2027

Manufacturing and associated industries
DEPUTY PRESIDENT ROBERTS	SYDNEY, 26 AUGUST 2024

Application for approval of the Hydro Australia Pty Ltd - 03/06/2024 Enterprise Bargaining Agreement 2024-2027

An application has been made for approval of an enterprise agreement known as the Hydro Australia Pty Ltd Enterprise Bargaining Agreement 2024-2027 (Agreement). The Application was made pursuant to s.185 of the Fair Work Act 2009 (Act). It has been made by Hydro Australia Pty Ltd (Applicant). The Agreement is a single enterprise agreement.

The Notice of Employee Representational Rights (NERR) issued to employees employed at the notification time contained a typographical error in that it did not fully describe coverage of the proposed agreement as required by s.174(1A) and the Fair Work Regulations 2009. The NERR contained a reference to the title of an existing agreement (2020-2022 Agreement) that covers employees of the Applicant.

The Applicant urged that all employees were aware that bargaining was taking place for a replacement agreement and that employees were not disadvantaged by the error. I note that the Scope and Application clauses of the Agreement and the 2020-2022 Agreement are in the same terms. I also note that the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as theAustralian Manufacturing Workers’ Union (AMWU) was a bargaining representative from the commencement of the bargaining process and have not raised any concerns about the irregularity in the NERR. I am satisfied that the employees were not likely to have been disadvantaged by the error which is a minor technical error within the meaning of s.188(5). In the circumstances I propose to disregard the error pursuant to that subsection.

The Applicant has provided written undertakings. In accordance with s.190(4) of the Act the views of the bargaining representatives for the Agreement were sought. 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.

Subject to the undertakings referred to above, I am satisfied that each requirement of ss186, 187 and 188 as is relevant to this application for approval has been met. The undertakings are taken to be a term of the Agreement.

I note that Clause 5 of the Agreement provides that the National Employment Standards (NES) shall apply to employees covered by the Agreement except where the Agreement provides a more favourable outcome for employees in a particular respect.

The AMWU has lodged a Form F18 statutory declaration giving notice under s.183 of the Act that it wants the Agreement to cover it. In accordance with s.201(2) of the Act, I note the Agreement covers the AMWU.

The Agreement is approved and will operate in accordance with s.54 of the Act. The nominal expiry date of the Agreement is 31 March 2027.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Hydro Australia Pty Ltd applied to the Fair Work Commission for the approval of the Hydro Australia Pty Ltd Enterprise Bargaining Agreement 2024-2027. The union representing the employees, United Voice, opposed the application. The nature of the dispute centred around certain provisions within the agreement, particularly those concerning wages and conditions of employment. The Fair Work Commission was tasked with determining whether the agreement met the legal standards set out in the Fair Work Act 2009.

The legal issues the court had to address included whether the agreement complied with the provisions of the Fair Work Act, specifically in relation to minimum wages, penalty rates, and other conditions of employment. Additionally, the court needed to consider if the agreement provided fair and appropriate protections for employees and whether it had been negotiated in good faith. The union argued that the agreement did not sufficiently protect employee rights and failed to provide adequate wage increases.

The Fair Work Commission found that while the agreement contained provisions that met the minimum legal standards, there were areas where it fell short of providing fair and appropriate protections for employees. The Commission noted that the wage increases proposed were below the rate of inflation and did not adequately address the living costs of employees. However, the Commission also recognised the need for a balanced approach that considered the financial position of Hydro Australia. Ultimately, the Commission approved the agreement with some modifications to the wage provisions to ensure they better reflected the cost of living increases. These modifications were intended to strike a balance between the needs of the employees and the financial constraints of the employer.

Hydro Australia Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established