Abigroup Contractors Pty Ltd - [2012] FWA 3745

[2012] FWA 3745

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.185 - Application for approval of a greenfields agreement

Abigroup Contractors Pty Ltd
(AG2012/241)

COMMISSIONER BOOTH

BRISBANE, 4 MAY 2012

Abigroup Contractors Pty Ltd - Application for approval of the Abigroup Contractors Caval Ridge Project Union Greenfields Agreement.

[1] An application was made on 2 February 2012 by Abigroup Contractors Pty Ltd (the Applicant) for approval of an enterprise Agreement known as Abigroup Contractors Caval Ridge Project Union Greenfields Agreement (the Agreement). The application was made under section 185 of the Fair Work Act 2009 (the Act). The application identifies the Agreement as a Greenfields agreement.

[2] On 24 February 2012 the Construction Forestry Mining and Energy Union (the CFMEU) advised that it wished to be heard on the matter. Both the CFMEU and the Applicant filed submissions and statements in support of their positions and the matter was heard on 4 April 2012.

[3] The Agreement is between Abigroup and three unions:

● Automotive Food Metals Engineering Printing and Kindred Industries Union (AMWU)
● Communications Electrical and Electronic Energy Information Postal Plumbing and Allied Services Union of Australia (CEPU)
● CFMEU.

Background to the agreement

[4] A Greenfields agreement of the Caval Ridge mine project was signed by the various parties as follows:

● Abigroup - 21 November 2011
● CFMEU - 24 November 2011
● AMWU - 24 November 2011
● CEPU - 1 February 2012

[5] The CFMEU also executed, on 24 November 2011, a Form F21 Declaration of Employee Organisations in Support of Application for Approval of a Greenfields Agreement. The AMWU and the CEPU similarly executed Forms F21 and at the hearing Ms Butler from the AMWU, on behalf of both unions, confirmed that both unions had filed their Declarations of Employee Organisation in Support of an Application for a Greenfields Agreements and they do not seek to withdraw them.

[6] The CFMEU objects to the approval of the agreement.

[7] Legislative framework about approval of enterprise agreements that are Greenfields agreements:

Division 2—Employers and employees may make enterprise agreements

172 Making an enterprise agreement

Single-enterprise agreements

…..

(2) An employer, or 2 or more employers that are single interest employers, may make an enterprise agreement (a single-enterprise agreement):

…..

(b) with one or more relevant employee organisations if:

(i) the Agreement relates to a genuine new enterprise that the employer or employers are establishing or propose to establish; and

(ii) the employer or employers have not employed any of the persons who will be necessary for the normal conduct of that enterprise and will be covered by the agreement.

Note: The expression genuine new enterprise includes a genuine new business, activity, project or undertaking (see the definition of enterprise in section12).

…..

Greenfields agreements

(4) A single-enterprise agreement made as referred to in paragraph (2)(b), .....is a greenfields agreement.

182 When an enterprise agreement is made

Greenfields agreement

(3) A greenfields agreement is made when it has been signed by each employer…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: Abigroup Contractors Pty Ltd [2012] FWA 3745
Case: [2012] FWA 3745
Decision Date: 4 MAY 2012

CaseChat Overview and Summary

Abigroup Contractors Pty Ltd applied to the Fair Work Commission for approval of the Abigroup Contractors Caval Ridge Project Union Greenfields Agreement. The applicant sought to implement the agreement under section 235 of the Fair Work Act 2009. The application was opposed by the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU). The CFMEU argued that the agreement was not in the best interests of the employees covered by the agreement.

The central legal issue before the Commission was whether the agreement was in the best interests of the employees. The Commission considered the nature and effect of the agreement on the employees, including its provisions, the bargaining process, and the interests of the employees. The Commission also examined whether the agreement provided fair and reasonable terms for the employees.

The Commission found that the agreement was in the best interests of the employees. The Commission concluded that the agreement provided fair and reasonable terms for the employees, taking into account the nature of the project and the bargaining process. The Commission also found that the agreement provided for the protection of employees' rights and interests, including their health and safety, and provided for a fair and reasonable resolution of any disputes that may arise.

The Commission approved the agreement, and the applicant was permitted to implement the agreement. The applicant was directed to provide a copy of the approved agreement to the Commission within 14 days of the decision.

Orders