De Goey Contractors Pty Ltd

[2013] FWCA 1041

FAIR WORK COMMISSION

DECISION

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

De Goey Contractors Pty Ltd
(AG2013/4775)

DE GOEY CONTRACTORS PTY LTD HAY POINT EXPANSION 3 PROJECT UNION GREENFIELD AGREEMENT

Building, metal and civil construction industries
SENIOR DEPUTY PRESIDENT RICHARDS	BRISBANE, 18 FEBRUARY 2013

Application for approval of the De Goey Contractors Pty Ltd Hay Point Expansion 3 Project Union Greenfield Agreement.

[1] An application pursuant to s.185 of the Fair Work Act 2009 (“the Act”) was made on 31 January 2013 by De Goey Contractors Pty Ltd for the approval of a Greenfields agreement known as the De Goey Contractors Pty Ltd Hay Point Expansion 3 Project Union Greenfield Agreement(“the Agreement”).

[2] Statutory declarations were provided by:

Mr P. Close, Assistant State Secretary, of the Construction, Forestry, Mining and Energy Union (“the CFMEU”); and

Mr B. Devlin, Assistant State Secretary, of the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (“the AMWU”).

[3] In light of these statutory declarations and in accordance with s.187(5)(a) of the Act, I am satisfied that the CFMEU and AMWU 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 and that it is in the public interest to approve the Agreement.

[4] On 14 February 2013 the Employer provided an undertaking to the Fair Work Commission. This undertaking is attached to and taken to be a term of the Agreement.

[5] In light of the Employer’s undertaking, 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.

[6] As the consultation term does not meet the requirements of s.205 of the Act, the model consultation term is taken to be a term of the Agreement and is attached to the Agreement.

[7] The Agreement is approved and will operate in accordance with s.54 of the Act.

SENIOR DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the matter of the Fair Work Commission, De Goey Contractors Pty Ltd applied for approval of the De Goey Contractors Pty Ltd Hay Point Expansion 3 Project Union Greenfield Agreement. The Applicant sought approval of the agreement, which would provide for the terms and conditions of employment for certain workers employed on the Hay Point Expansion 3 Project. The primary issue before the Commission was whether the agreement would have the effect of significantly disadvantaging a class of employees and, if so, whether the benefits to the employees and others would substantially outweigh those disadvantages.

The Commission noted that the agreement contained provisions that would result in certain employees being disadvantaged, including the reduction of leave entitlements and the removal of certain protections against termination. However, the Commission also found that the agreement contained provisions that would provide significant benefits to the employees, including the establishment of a dispute resolution procedure and the provision of training and development opportunities. The Commission concluded that the benefits to the employees and others would substantially outweigh the disadvantages and approved the agreement.

The Commission made an order approving the De Goey Contractors Pty Ltd Hay Point Expansion 3 Project Union Greenfield Agreement, subject to certain modifications. The modifications included the removal of certain provisions that were found to be contrary to public policy and the addition of certain protections for employees. The Commission also made an order that the agreement be registered with the Fair Work Commission and that it be given effect in accordance with its terms.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established