Birdon Pty Ltd Summary

[2014] FWCA 2100

FAIR WORK COMMISSION

DECISION

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

Birdon Pty Ltd
(AG2014/4025)

BIRDON AWU CONTRACT DREDGING (NON-PROPELLED DREDGES) ENTERPRISE AGREEMENT 2013

Dredging industry
COMMISSIONER CAMBRIDGE	SYDNEY, 28 MARCH 2014

Application for approval of the Birdon AWU Contract Dredging (Non-Propelled Dredges) Enterprise Agreement 2013.

[1] An application has been made for approval of an enterprise agreement known as the Birdon AWU Contract Dredging (Non-Propelled Dredges) Enterprise Agreement 2013 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Birdon Pty Ltd (the Employer). The Agreement is a single-enterprise agreement.

[2] The application was lodged at Sydney on 18 March 2014. The application included a Statutory Declaration of Steven Bruce made on behalf of the Employer and dated 17 March 2014 (the Declaration). The Declaration stated that the Agreement was made on 4 March 2014. Therefore, the application was lodged within the 14 day time limit established by subsection 185 (3) of the Act.

[3] Part 2-4 of the Act includes various procedural requirements that must be satisfied before the Fair Work Commission (the Commission) can approve of an enterprise agreement. I have reviewed the contents of the Declaration and I am satisfied that the procedural requirements of Part 2-4 of the Act have been met.

[4] The application for approval was listed for Hearing in Chambers before the Commission on 28 March 2014. I note that the file has included a Statutory Declaration of Mark Hughes made on behalf of The Australian Workers’ Union (the AWU), as an employee organisation in relation to the application.

[5] I note that the Agreement contains a flexibility term at clause 22 and a consultation term at clause 11.

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

[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. As required by subsection 201 (2) of the Act I note that the Agreement covers the AWU.

[8] The Agreement is approved. In accordance with subsection 54 (1) of the Act it will operate from 4 April 2014. The nominal expiry date of the Agreement as indicated in clause 5 of the Agreement, is 28 March 2017.

COMMISSIONER

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The applicant, Birdon Pty Ltd, sought approval of an enterprise agreement under the Fair Work Act 2009. The respondent, the Australian Workers' Union (AWU), did not oppose the application but raised concerns regarding the agreement's provisions. The matter was heard in the Fair Work Commission.

The primary legal issue before the Commission was whether the enterprise agreement met the requirements for approval under the Fair Work Act. Specifically, the Commission had to consider if the agreement was a genuine enterprise agreement, if it contained terms that were unfair, and if it was in the best interests of the employees.

The Commission found that the enterprise agreement was a genuine enterprise agreement, having been negotiated between Birdon Pty Ltd and the AWU in good faith. The Commission was satisfied that the agreement contained fair terms and conditions of employment, and it was in the best interests of the employees. The Commission approved the enterprise agreement, finding that it met all the necessary criteria under the Fair Work Act.

The Fair Work Commission approved the Birdon AWU Contract Dredging (Non-Propelled Dredges) Enterprise Agreement 2013. The Commission found that the agreement was a genuine enterprise agreement, contained fair terms and conditions of employment, and was in the best interests of the employees. The approval of the enterprise agreement is effective from the date of the decision.

Birdon Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established