Civmec Construction and Engineering Pty Ltd

[2013] FWCA 8931

[2013] FWCA 8931

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Civmec Construction and Engineering Pty Ltd
(AG2013/1288)

CIVMEC CONSTRUCTION AND ENGINEERING PTY LTD ENTERPRISE AGREEMENT 2013

Building, metal and civil construction industries
DEPUTY PRESIDENT MCCARTHY	PERTH, 20 NOVEMBER 2013

Application for approval of the Civmec Construction and Engineering Pty Ltd Enterprise Agreement 2013.

[1] On 25 October 2013, I issued an Interim Decision 1 regarding aspects of the approval of the Civmec Construction and Engineering Pty Ltd Enterprise Agreement 2013 (the Agreement) and invited the Construction, Forestry, Mining and Energy Union (the CFMEU) to provide further submissions. The CFMEU responded that they noted that:

“1. the requirements found at section 186(3) & (3A) of the Fair Work Act 2009; and

2. the employer’s declaration in respect of these requirements found at Part 2.3 of the Form 17 accompanying their application.”

[2] Here the Agreement under consideration does not cover all employees of the employer. The Agreement excludes coverage of a number of agreements including those in the Henderson Fabrication, Materials Handling and Assembly Yard and Greenfields agreements at the Marandoo and Hope Downs Projects.

[3] The Fair Work Act 2009 (the FW Act) provides in s.186(3) that the Fair Work Commission (the FWC) must be satisfied that the group of employees covered by the agreement was fairly chosen and s.186(3A) provides that if the agreement does not cover all of the employees of the employer or employers covered by the agreement, the FWC must take a number of matters into account in assessing whether the group was fairly chosen.

[4] I consider that the employees at those sites that are excluded from coverage of this Agreement are themselves geographically, and most likely operationally and organisationally, distinct. The question arises then as to whether the employees covered by this Agreement are distinct in any of those respects as a consequence of employees at those sites being distinct.

[5] I do not consider that it naturally follows that the employees covered by this Agreement are distinct in any of the respects specifically mentioned in s.186(3A). Rather, they are the balance of employees who are not distinct in those respects. However, being the balance of employees inclines me to the view that they were fairly chosen.

[6] I therefore find that the employees covered by this Agreement were fairly chosen.

[7] I am also 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.

[8] The Agreement is approved and, in accordance with s.54 of the FW Act, will operate from seven days from the date of this decision. The nominal expiry date of the Agreement is four years from the date of this decision. Consistent with the correction to the Agreement in my decision on 25 October 2013 2, Clause 2.2(a) will now read “(a) Civmec Henderson Fabrication Materials Handling and Assembly Yard Works Union Greenfields Agreement 2010 and Civmec Henderson Fabrication Materials Handling and Assembly Yard Works Enterprise Agreement 2013.”

DEPUTY PRESIDENT

 1   [2013] FWC 8396, PR543777

 2   Ibid para 21

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