Hydro-Chem Pty Ltd

[2023] FWCA 1926

[2023] FWCA 1926

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Hydro-Chem Pty Ltd

(AG2023/1887)

HYDRO-CHEM AND AWU ENTERPRISE AGREEMENT 2022 – 2025

Manufacturing and associated industries
COMMISSIONER MIRABELLA	MELBOURNE, 29 JUNE 2023

Application for approval of the Hydro-Chem and AWU Enterprise Agreement 2022 – 2025.

1. Hydro-Chem Pty Ltd (the Employer) has made an application for approval of an enterprise agreement known as the Hydro-Chem and AWU Enterprise Agreement 2022 – 2025 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement.

1. On the basis of the material contained in the application and accompanying declaration, I am satisfied that each of the requirements of sections 186, 187 and 188, as are relevant to this application for approval, have been met.

1. The Employer did not take all reasonable steps to ensure that:

·   Employees were given a copy of the incorporated modern award during the access period for the Agreement, or

·   Employees had access to a copy of the incorporated modern award throughout the access period for the Agreement.

1. Pursuant to s.188(2), I am satisfied that the Agreement would have been genuinely agreed to but for the minor procedural error made in relation to the requirement in s.180(2) of the Act. I am satisfied that the employees covered by the Agreement were not likely to have been disadvantaged by the error. As a result, I am satisfied that the Agreement has been genuinely agreed to within the meaning of s.188(2) of the Act.

1. I observe that certain provisions of the Agreement are likely to be inconsistent with the National Employment Standards (NES). However, noting clause 4.4 of the Agreement, I am satisfied that the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

1. The Australian Workers’ Union, 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 declaration provided by the organisation, I note that the Agreement covers the organisation.

1. The Agreement was approved on 29 June 2023 and, in accordance with s.54, will operate from 6 July 2023. The nominal expiry date of the Agreement is 30 June 2025.

COMMISSIONER

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