Hymix Australia Pty Ltd

[2024] FWCA 3799

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

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

Hymix Australia Pty Ltd

(AG2024/3722)

Cement and concrete products
COMMISSIONER THORNTON	ADELAIDE, 30 OCTOBER 2024

Application for approval of the Hymix Australia Pty Limited NSW Metro Concrete Cartage Enterprise Agreement 2024

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

The copy of the Agreement filed with the application for approval did not contain a signature page in the terms required by s.185(2) of the Act and Regulation 2.06A of the Fair Work Regulations 2009 (the Regulations). An amended copy of the signature page that met the requirements of the Act and Regulations was later filed. I consider it appropriate in the circumstances to allow the amendment to the Agreement pursuant to s.586(a) of the Act.

The Applicant has provided written undertakings. 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, 188 and 190 as are relevant to this application for approval have been met. The undertakings are taken to be a term of the Agreement.

Noting the undertakings provided, and clause 2(b) of the Agreement, I am satisfied that the more beneficial entitlements of the NES in the Act will prevail where there is an inconsistency between the Agreement and the NES.

The Transport Workers’ Union (TWU) 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 TWU.

The Agreement is approved and will operate in accordance with s.54 of the Act from 6 November 2024. The nominal expiry date of the Agreement is 30 August 2027.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

ANNEXURE A

CaseChat Overview and Summary

Hymix Australia Pty Ltd applied to the Fair Work Commission for approval of a single-enterprise agreement, the Hymix Australia Pty Limited NSW Metro Concrete Cartage Enterprise Agreement 2024. The application was made under section 185 of the Fair Work Act 2009. The primary concern was that the initial copy of the agreement did not meet the requirements for the signature page as stipulated by section 185(2) of the Act and Regulation 2.06A of the Fair Work Regulations 2009. However, an amended copy that complied with these requirements was subsequently filed. The Commissioner decided to allow the amendment under section 586(a) of the Act, provided that Hymix Australia Pty Ltd gave certain written undertakings. The Commissioner was satisfied that these undertakings would not financially harm any employees or substantially alter the agreement. The Commissioner also confirmed that the agreement would ensure that any entitlements under the National Employment Standards would prevail in case of conflict.

The legal issues before the Commissioner involved ensuring that the agreement met all necessary statutory requirements for approval, particularly regarding the signature page and the provisions concerning the National Employment Standards. The Commissioner had to assess whether the amended agreement met all relevant conditions set out in sections 186, 187, 188, and 190 of the Fair Work Act, as well as ensuring that the Transport Workers’ Union's notice to cover the agreement was properly noted. The Commissioner concluded that the agreement met all these requirements and could be approved. The Transport Workers’ Union's statutory declaration to cover the agreement was also duly noted.

The Fair Work Commission granted approval for the enterprise agreement, subject to the conditions outlined in the Commissioner's decision. The agreement is set to operate from 6 November 2024, with a nominal expiry date of 30 August 2027. The Commissioner's decision to allow the amendment to the signature page and to incorporate the written undertakings as terms of the agreement was based on the satisfaction that these measures would not adversely affect employees or alter the agreement's fundamental terms. The agreement ensures that any entitlements under the National Employment Standards will take precedence where there is a conflict with the terms of the agreement. The Commissioner’s decision was made in accordance with the relevant sections of the Fair Work Act and Regulations.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established