Albem Operations Pty Ltd

[2019] FWCA 7980

[2019] FWCA 7980

FAIR WORK COMMISSION

DECISION

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

Albem Operations Pty Ltd
(AG2019/3917)

HRFUP ENTERPRISE AGREEMENT 2019

Building, metal and civil construction industries
COMMISSIONER HUNT	BRISBANE, 26 NOVEMBER 2019

Application for approval of the HRFUP Enterprise Agreement 2019.

[1] Albem Operations Pty Ltd (the Employer) has applied for approval of an enterprise agreement known as the HRFUP Enterprise Agreement 2019 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single-enterprise agreement.

[2] The application was not lodged within 14 days after the Agreement was made. The Employer provided submissions to the Commission at the time of lodging its application as to the explanation for the late lodgement. On the basis of that material and pursuant to s.185(3)(b) of the Act, in all the circumstances I consider it fair to extend the time for making the application to the date it was actually made.

[3] On 22 October 2019 the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) wrote to the Fair Work Commission (the Commission) and requested to be provided with copies of the Employer’s lodgement material as the CFMMEU wished to make submissions in relation to the application. Redacted copies of the Form F16 application for approval and Form F17 statutory declaration of Mr Jeff Hughes, Construction Manager of the Employer, were provided to the CFMMEU by the Commission.

[4] Upon allocation of this matter to me, I raised certain concerns regarding the Agreement with the Employer, and as a result, the Employer has provided written undertakings. A copy of the undertakings is attached at Annexure A. Pursuant to s.190(4) of the Act I sought the views of the Australian Workers’ Union (AWU) regarding the undertakings provided by the Employer; the AWU being a bargaining representative for the Agreement. I also invited the CFMMEU to provide its views on the undertakings provided by the Employer. The CFMMEU wrote to my chambers and stated that it does not oppose the application for approval. The AWU did not provide any views on the Employer’s undertakings within the timeframe afforded for its response.

[5] 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. Pursuant to s.190 of the Act, I accept the undertakings. In accordance with s.201(3) of the Act I note that the undertakings are taken to be a term of the Agreement.

[6] I have taken into consideration the material filed in the Commission. Subject to the undertakings referred to above, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 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 s.186(3) and (3A) I am satisfied that the group of employees was fairly chosen.

[7] The AWU 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.

[8] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 3 December 2019. The nominal expiry date of the Agreement is 30 June 2022.

COMMISSIONER

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Annexure A: