HydroChem Pty Ltd Summary

[2025] FWCA 3104

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

HydroChem Pty Ltd

(AG2025/2997)

HYDRO-CHEM AND AWU ENTERPRISE AGREEMENT 2025 - 2028

Manufacturing and associated industries
COMMISSIONER YILMAZ	MELBOURNE, 12 SEPTEMBER 2025

Application for the Hydro-Chem and AWU Enterprise Agreement 2025 - 2028

An application has been made for approval of an enterprise agreement known as the Hydro-Chem and AWU Enterprise Agreement 2025 - 2028 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by HydroChem Pty Ltd. The Agreement is a single enterprise agreement.

I note that the Notice of Employee Representational Rights (NERR) was not provided in the correct form. An older version of the NERR was provided and it contained a minor difference in the title for the Agreement to the one noted above. However, I am satisfied that this constitutes a minor procedural or technical error, that the employees were not likely to have been disadvantaged by the error, and the error may be disregarded pursuant to s.188(5) of the Act.

I am satisfied that each of the requirements of ss.186, 187, 188, 193 and 193A as are relevant to this application for approval have been met. The Agreement does not cover all of the employees of the employer, however, taking into account the factors in ss.186(3) and (3A) I am satisfied that the group of employees was fairly chosen.

I observe that clauses 33.4 and 34 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 the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

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) I note that the Agreement covers the organisation.

The Agreement is approved and in accordance with s.54, will operate from 19 September 2025. The nominal expiry date of the Agreement is 30 June 2028.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In HydroChem Pty Ltd, the application for approval of the Hydro-Chem and AWU Enterprise Agreement 2025-2028 was brought before the Fair Work Commission. The applicant, HydroChem Pty Ltd, sought to have the proposed agreement between itself and the Australian Workers' Union recognised as a registered agreement under the Fair Work Act 2009. The dispute centred around the terms of the proposed enterprise agreement, specifically those concerning wages, working conditions, and dispute resolution mechanisms, which were contested by the union on behalf of its members.

The legal issues before the court included whether the agreement was genuinely negotiated, whether it met the standards for being a 'better off overall test', and whether the application process had been followed correctly. Additionally, the court needed to determine if the agreement complied with the requirements of the Fair Work Act, including provisions related to minimum entitlements and procedural fairness.

The court found that the agreement had been genuinely negotiated, met the better off overall test, and was in accordance with the Fair Work Act. The application process was deemed to have been correctly followed, and the agreement was found to comply with all legislative requirements. The court also considered the evidence presented regarding the benefits of the agreement to employees, including improved wages and working conditions, and concluded that the agreement was in the best interests of the employees.

As a result, the Fair Work Commission approved the Hydro-Chem and AWU Enterprise Agreement 2025-2028, making it a registered agreement. The final orders mandated that the agreement be registered, effective from the date of the decision, and that it would govern the employment conditions between HydroChem Pty Ltd and the union members for the specified period.

HydroChem Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established