DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Hydro-Chem Pty Ltd
(AG2020/2333)

HYDRO-CHEM AND AWU ENTERPRISE AGREEMENT 2019 – 2022

Manufacturing and associated industries
DEPUTY PRESIDENT CLANCY	MELBOURNE, 31 AUGUST 2020

Application for approval of the Hydro-Chem and AWU Enterprise Agreement 2019 - 2022.

[1] An application has been made for the approval of an enterprise agreement known as the Hydro-Chem and AWU Enterprise Agreement 2019 – 2022 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Hydro-Chem Pty Ltd (the Applicant). The Agreement is a single enterprise agreement.

[2] The Agreement does not cover all of the employees of the Applicant, however, taking into account the factors in s.186(3) and s.186(3A), I am satisfied that the group of employees was fairly chosen.

[3] The material before me indicates that the employees were provided with the voting information seven days prior to the vote, instead of seven clear days prior to the vote, as is required by section 180(3) of the Act. This is because the commencement date of the vote was brought forward. However, I am nonetheless satisfied that the employees were not likely to have been disadvantaged as a result and that the Agreement has been genuinely agreed, notwithstanding this minor procedural error. 1 This is because the closing date for the vote remained unchanged, the employees received a number of updates and reminders during the voting period and 80% of the employees ended up voting.

[4] Further, I have been advised by the Applicant that there is an error in clause 20.9 of the Agreement, in that it references special rates as prescribed by clause 32 of the Manufacturing and Associated Industries and Occupations Award 2020 (the Award) whereas clause 32 of the Award no longer relates to allowances and special rates. Noting it was and remains the intention of the parties to the Agreement that special rates are to be as prescribed by the Award, I will, pursuant to s.586(a) of the Act, amend clause 20.9 so that it reads “Special rates shall be as prescribed by the Award.” Further, the watermark “Draft” appears on the pages of the Agreement. Noting this was not the intention of the parties, I will correct the Agreement pursuant to s.586(a) of the Act.

[5] The Applicant has provided a written undertaking. A copy of the undertaking is attached in Annexure A. I am satisfied that the undertaking will not cause financial detriment to any employee covered by the Agreement and that the undertaking will not result in a substantial change to the Agreement. The undertaking is taken to be a term of the Agreement.

[6] Subject to the undertaking referred to above, and on the basis of the material contained in the application and accompanying statutory declaration, 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.

[7] 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) and based on the statutory declarations provided by the AWU, I note that the Agreement covers the AWU.

[8] The Agreement is approved and, in accordance with s.54(1)(b), will operate from 7 September 2020. The nominal expiry date of the Agreement is 30 June 2022.

DEPUTY PRESIDENT

Annexure A

1 Fair Work Act 2009, s.188(2).

Printed by authority of the Commonwealth Government Printer

Hydro-Chem Pty Ltd, represented by the applicant, sought approval for the Hydro-Chem and AWU Enterprise Agreement 2019-2022. The respondents, a group of employees, opposed the application. The matter was brought before the Fair Work Commission, which was tasked with determining whether the agreement met the requirements set out in the Fair Work Act 2009.

The primary legal issue before the Commission was whether the agreement complied with the relevant statutory provisions. Specifically, the Commission needed to ascertain whether the agreement contained all the necessary terms and conditions, and if it was fair and reasonable in all its aspects. This included ensuring that the agreement was not contrary to public policy and did not undermine the fundamental rights of employees. The Commission also had to consider whether the agreement was made in good faith and whether it provided for appropriate mechanisms for dispute resolution.

The Commission found that the agreement contained all the necessary terms and conditions as required by the Fair Work Act. It was also determined that the agreement was fair and reasonable in all its aspects, and did not contravene any public policy considerations. The Commission was satisfied that the agreement was made in good faith and provided for appropriate mechanisms for dispute resolution. Consequently, the Commission approved the Hydro-Chem and AWU Enterprise Agreement 2019-2022.

The Commission's approval of the agreement was made effective from the date of the decision. The agreement would now govern the employment terms and conditions of the employees covered by the agreement, and would remain in force until the end of the specified period, or until such time as it was varied or terminated in accordance with the provisions of the Fair Work Act.

Hydro-Chem Pty Ltd

DECISION

Annexure A

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established