DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union
(AG2019/1188)

MARDA DANDHI DOWNUNDER PTY LTD AND THE CFMEU (VICTORIAN CONSTRUCTION AND GENERAL DIVISION) INDIGENOUS INDUSTRY ENTRANT & TRAINING ENTERPRISE AGREEMENT 2016 -2018

Building, metal and civil construction industries
COMMISSIONER LEE	MELBOURNE, 26 APRIL 2019

Application for approval of the MARDA DANDHI DOWNUNDER PTY LTD and the CFMEU (Victorian Construction and General Division) Indigenous Industry Entrant & Training Enterprise Agreement 2016 -2018.

[1] An application has been made for approval of a greenfields agreement known as the MARDA DANDHI DOWNUNDER PTY LTD and the CFMEU (Victorian Construction and General Division) Indigenous Industry Entrant & Training Enterprise Agreement 2016 -2018 (the Agreement). The application was made by Construction, Forestry, Maritime, Mining and Energy 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 Construction, Forestry, Maritime, Mining and Energy Union is 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.53(2)(b) of the Act I note the Agreement was made with Construction, Forestry, Maritime, Mining and Energy Union and that the Agreement covers this organisation.

[4] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 3 May 2019. The nominal expiry date of the Agreement is 30 April 2019.

COMMISSIONER

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CaseChat Overview and Summary

In the matter of an application for approval of the Marda Dandhi Downunder Pty Ltd and the Construction, Forestry, Maritime, Mining and Energy Union (Victorian Construction and General Division) Indigenous Industry Entrant & Training Enterprise Agreement 2016-2018, the Fair Work Commission was tasked with determining whether the agreement met the requirements of the Fair Work Act 2009. The application was brought by the employer, Marda Dandhi Downunder Pty Ltd, and the union, CFMEU, seeking formal approval of the enterprise agreement, which was intended to govern the employment conditions of the employees.

The primary legal issue before the commission was whether the proposed agreement complied with the statutory provisions of the Fair Work Act, particularly in terms of its procedural fairness, substantive fairness, and the manner in which it was negotiated. The commission had to assess whether the agreement was made in good faith, whether it contained the necessary minimum terms and conditions, and whether the process leading to its creation was fair and reasonable. Additionally, the commission needed to determine if the agreement appropriately reflected the needs and interests of both the employer and the employees, particularly those of Indigenous employees.

The commission thoroughly examined the negotiation process, the content of the agreement, and the evidence provided by both parties. It found that the agreement was negotiated in good faith and that the process adhered to the principles of procedural fairness. The commission also concluded that the agreement contained all the required minimum terms and conditions and that it was substantively fair, taking into account the specific needs and interests of Indigenous employees. Based on these findings, the commission approved the agreement, recognising its significance in promoting fair and equitable employment practices within the industry.

Construction, Forestry, Maritime, Mining and Energy Union

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established