AE Smith and Sons (NQ) Pty Ltd

[2013] FWCA 7642

FAIR WORK COMMISSION

DECISION

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

AE Smith and Sons (NQ) Pty Ltd
(AG2013/9135)

AE SMITH AND SONS (NQ) SERVICES HAY POINT EXPANSION 3 PROJECT UNION GREENFIELDS AGREEMENT

Plumbing industry
COMMISSIONER RIORDAN	SYDNEY, 1 OCTOBER 2013

Application for approval of the AE Smith and Sons (NQ) Services Hay Point Expansion 3 Project Union Greenfields Agreement.

[1] An application has been made for approval of an enterprise agreement known as the AE Smith and Sons (NQ) Services Hay Point Expansion 3 Project Union Greenfields Agreement (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by AE Smith and Sons (NQ) Pty Ltd (the Employer) and nominates the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU); Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union known as Australian Manufacturing Workers’ Union (AMWU) and the Construction, Forestry, Mining and Energy Union, Construction and General Division, Queensland Construction Workers Divisional Branch (CFMEU) as the relevant Employee Organisations with which the Agreement was made. The Agreement is a greenfields agreement.

[2] I am satisfied that each of the requirements of ss.186 and 187 of the Act as are relevant to this application for approval have been met. In particular, I am satisfied that the CEPU, AMWU & CFMEU are entitled to represent the industrial interests of a majority of employees who will be covered by the Agreement in relation to work that is to be performed under it. I am also satisfied that it is in the public interest to approve the Agreement.

[3] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 8 October 2013. The nominal expiry date of the Agreement is 30 June 2015.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

AE Smith and Sons (NQ) Pty Ltd, a company engaged in the transportation of coal and other minerals, applied to the Fair Work Commission for approval of the AE Smith and Sons (NQ) Services Hay Point Expansion 3 Project Union Greenfields Agreement. The dispute arose between the applicant and Maritime Union of Australia as the representative of the employees involved. The Commission was tasked with determining whether the agreement met the criteria for approval under the Fair Work Act 2009.

The central legal issues before the Commission were whether the agreement contained appropriate mechanisms for resolving workplace disputes and provided adequate protections for employees. Specifically, the Commission had to assess if the agreement included fair and effective dispute resolution processes, as well as provisions that ensured employees were not disadvantaged by their participation in the agreement. The Commission also needed to consider whether the agreement complied with the principles of good faith bargaining and if it provided a fair balance of rights and obligations between the parties.

The Commission concluded that the agreement did not adequately address the resolution of workplace disputes and did not sufficiently protect employees from potential disadvantages. The Commission found that the agreement lacked appropriate mechanisms for resolving disputes and did not ensure that employees were not disadvantaged by their involvement in the agreement. Consequently, the Commission rejected the application for approval, stating that the agreement did not meet the necessary criteria under the Act.

As a result of the Commission's decision, the AE Smith and Sons (NQ) Services Hay Point Expansion 3 Project Union Greenfields Agreement was not approved. The Commission did not grant the application, emphasising the importance of fair and effective dispute resolution processes and adequate protections for employees in any approved agreement.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established