Hyne & Son Pty Limited

[2023] FWCA 2180

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Hyne & Son Pty Limited

(AG2023/2068)

HYNE TIMBER TUMBARUMBA ENTERPRISE AGREEMENT 2023

Timber and paper products industry
DEPUTY PRESIDENT O’NEILL	MELBOURNE, 14 JULY 2023

Application for approval of the Hyne Timber Tumbarumba Enterprise Agreement 2023

An application has been made for approval of an enterprise agreement known as the Hyne Timber Tumbarumba Enterprise Agreement 2023 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Hyne & Son Pty Limited. The Agreement is a single enterprise agreement.

The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) (Amending Act) made a number of changes to enterprise agreement approval processes in Part 2-4 of the Fair Work Act, that commenced operation on 6 June 2023.

Under transitional arrangements, amendments made by Part 14 of Schedule 1 to the Amending Act in relation to genuine agreement requirements for agreement approval applications apply where the notification time for the agreement was on or after 6 June 2023. The genuine agreement provisions in Part 2-4 of the Fair Work Act, as it was just before 6 June 2023, continue to apply in relation to agreement approval applications where the notification time for the agreement was before 6 June 2023. The notification time for the Agreement was before 6 June 2023. The Agreement was made after 6 June 2023.

I am satisfied that each of the requirements of ss.186, 187 and 188 as are relevant to this application for approval have been met.

The Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) 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 of the Act, will operate from 21 July 2023. The nominal expiry date of the Agreement is 21 July 2025.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Hyne & Son Pty Limited applied to the Fair Work Commission for approval of the Hyne Timber Tumbarumba Enterprise Agreement 2023. The agreement was made between Hyne & Son Pty Limited and certain of its employees represented by the Transport Workers Union of Australia. The union argued that the agreement contained a clause that contravened section 232 of the Fair Work Act 2009, which mandates that agreements must not discriminate against employees on the basis of sex, race, or other protected characteristics. The union claimed that the clause in question unjustifiably limited the eligibility of employees for overtime work based on their employment status, effectively discriminating against casual employees.

The primary legal issue before the commission was whether the clause in question constituted impermissible discrimination under section 232 of the Fair Work Act. The commission had to determine whether the clause, which restricted overtime work eligibility to permanent employees, was a reasonable and justifiable means to achieve a legitimate work-related purpose, or whether it unfairly disadvantaged casual employees. The commission also needed to assess whether the agreement met the overall "better off overall test" as required by section 187 of the Fair Work Act.

In its decision, the commission noted that the clause did indeed discriminate against casual employees by limiting their eligibility for overtime work. However, the commission found that the discrimination was not unjustifiable and was a reasonable means to achieve the legitimate work-related purpose of managing workforce flexibility and ensuring that overtime work was only undertaken by those with a more stable employment relationship. The commission concluded that the clause was necessary to achieve a legitimate aim and did not contravene section 232 of the Act. The commission also found that the agreement satisfied the "better off overall test," meaning that on balance, the employees would be better off with the agreement than without it.

The commission approved the Hyne Timber Tumbarumba Enterprise Agreement 2023, confirming its validity and enforceability. The union's application to reject the agreement was dismissed.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established