Hydro-Chem Pty Ltd

[2020] FWCA 4592

[2020] FWCA 4592

FAIR WORK COMMISSION

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).

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