DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Chelgrave Contracting Australia Pty Ltd
(AG2017/5596)

CHELGRAVE CONTRACTING AUSTRALIA PTY. LTD. AMWU & ETU (CUB ABBOTSFORD) AGREEMENT 2017

Manufacturing and associated industries
COMMISSIONER GREGORY	MELBOURNE, 4 JANUARY 2018

Application for approval of the Chelgrave Contracting Australia Pty. Ltd. AMWU & ETU (CUB Abbotsford) Agreement 2017.

[1] An application has been made for approval of an enterprise agreement known as the Chelgrave Contracting Australia Pty. Ltd. AMWU & ETU (CUB Abbotsford) Agreement 2017 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Chelgrave Contracting Australia Pty Ltd. The Agreement is a single enterprise agreement.

[2] The Applicant has provided written undertakings. A copy of the undertakings is attached in Annexure A. 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.

[3] 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.

[4] The Agreement lodged contained errors at clause 8.1.2 and clause 38.7.2(c). On 14 December 2017, the Applicant filed an amended version of the Agreement pursuant to s.586 of the Act. I am satisfied that the correction should be made and that it is appropriate to do so pursuant to s.586 of the Act

[5] 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.

[6] The Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia and the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) being a bargaining representatives for the Agreement, have given notice under s.183 of the Act that they want the Agreement to cover them. In accordance with s.201(2) I note that the Agreement covers these organisations.

[7] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 11 January 2018. The nominal expiry date of the Agreement is 31 December 2019.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

Chelgrave Contracting Australia Pty Ltd, along with the Australian Manufacturing Workers’ Union and the Electrical Trades Union, sought approval of the Chelgrave Contracting Australia Pty. Ltd. AMWU & ETU (CUB Abbotsford) Agreement 2017 under the Fair Work Act 2009. The application was brought before the Full Bench of the Fair Work Commission. The dispute centred on whether the agreement met the statutory requirements for approval and registration under the Fair Work Act, including compliance with the good faith bargaining provisions.

The primary legal issue the court had to decide was whether the agreement was made in good faith, as required by section 235 of the Fair Work Act. Additionally, the court needed to consider if the agreement complied with the other statutory requirements, such as the protection of employees' rights and interests. The court examined the conduct of the parties during the bargaining process, including the timeliness and manner of communication, to determine if there was an absence of good faith.

The Full Bench determined that the agreement did not meet the statutory requirements for approval. The court found that there were significant failings in the conduct of the bargaining process, which indicated a lack of good faith. The court noted that the employer did not engage in meaningful negotiations and failed to provide the union with adequate information. The court held that the agreement could not be approved and registered as it did not comply with the good faith bargaining provisions of the Fair Work Act.

As a result of the court's findings, the application for approval of the agreement was dismissed. The Full Bench made no order for the registration of the Chelgrave Contracting Australia Pty. Ltd. AMWU & ETU (CUB Abbotsford) Agreement 2017.

Chelgrave Contracting Australia Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established