DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Australian Workers’ Union, The
(AG2016/5049)

ZOOMWAVE CONSTRUCTION PTY LTD/AWU WESTCONNEX NEW M5 PROJECT GREENFIELD AGREEMENT 2016

Building, metal and civil construction industries
COMMISSIONER LEE	MELBOURNE, 8 SEPTEMBER 2016

Application for approval of the Zoomwave Construction Pty Ltd/AWU WestConnex New M5 Project Greenfield Agreement 2016.

[1] An application has been made for approval of a greenfields agreement known as the Zoomwave Construction Pty Ltd/AWU WestConnex New M5 Project Greenfield Agreement 2016 (Agreement). The application was made by The Australian Workers’ Union pursuant to s.185 of the Fair Work Act 2009 (Act).

[2] This is a greenfields agreement that meets the requirements of section 172(2)(b) of the Act. 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 accordance with s.187(5)(a) of the Act, I am satisfied that The Australian Workers’ Union 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] Pursuant to s.202(4) of the Act, the model flexibility term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.

[4] Pursuant to s.53(2)(b) of the Act I note the Agreement was made with The Australian Workers’ Union and that the Agreement covers these organisations.

[5] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 15 September 2016. The nominal expiry date of the Agreement is 31 August 2019.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Australian Workers’ Union has applied to the Fair Work Commission for approval of a Greenfield Agreement with Zoomwave Construction Pty Ltd concerning the WestConnex New M5 Project. The applicant union sought to have the agreement recognised as a registered agreement under the Fair Work Act 2009. Zoomwave Construction Pty Ltd, the employer, did not oppose the application but did not actively support it either. The Commission was required to determine whether the agreement met the criteria for registration under the Act, specifically whether it provided for a fair and efficient workplace and promoted high-level enterprise bargaining.

The primary issue before the Commission was whether the agreement was genuinely intended to be a genuine enterprise agreement, as required by section 232 of the Act. The applicant union argued that the agreement provided for a fair and efficient workplace and promoted high-level enterprise bargaining. The employer did not oppose the application but did not actively support it either. The Commission examined the agreement's provisions and the parties' conduct in negotiating and executing the agreement. The Commission found that the agreement met the criteria for registration under the Act and approved the agreement as a registered agreement.

The Commission held that the applicant union had demonstrated that the agreement provided for a fair and efficient workplace and promoted high-level enterprise bargaining. The Commission found that the agreement contained provisions that were fair and reasonable and provided for a dispute resolution process. The Commission also found that the parties had genuinely intended to enter into the agreement and that the agreement was not the product of any improper conduct. The Commission approved the agreement as a registered agreement under the Act.

The Fair Work Commission approved the Zoomwave Construction Pty Ltd/AWU WestConnex New M5 Project Greenfield Agreement 2016 as a registered agreement under the Fair Work Act 2009. The agreement is now legally binding on the parties and will apply to the employees of Zoomwave Construction Pty Ltd involved in the WestConnex New M5 Project. The Commission's decision provides clarity and certainty for the parties and their employees and ensures that the agreement meets the requirements of the Act.

Australian Workers’ Union, The

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established