Decmil Australia Pty Ltd

[2013] FWCA 5742

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Decmil Australia Pty Ltd
(AG2013/2151)

DECMIL AUSTRALIA PTY LTD ROY HILL AWU GREENFIELDS AGREEMENT 2013

Building, metal and civil construction industries
DEPUTY PRESIDENT MCCARTHY	PERTH, 15 AUGUST 2013

Application for approval of the Decmil Australia Pty Ltd Roy Hill AWU Greenfields Agreement 2013.

[1] An application has been made for approval of an enterprise agreement known as the Decmil Australia Pty Ltd Roy Hill AWU Greenfields Agreement 2013 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act).

[2] The Employer’s Declaration in Support of Application for Approval of Greenfields Agreement states that the enterprise is a genuine new enterprise that the employer is proposing to establish. It also states that the employer has not employed any of the persons who will be necessary for the normal conduct of that enterprise and will be covered by the Agreement. I am therefore satisfied that the requirements of s.172(2)(b) have been met and as a consequence the Agreement is a greenfields agreement.

[3] 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.

[4] The Agreement is approved and, in accordance with s.54 of the 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.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Decmil Australia Pty Ltd applied to the Fair Work Commission for approval of the Decmil Australia Pty Ltd Roy Hill AWU Greenfields Agreement 2013. The Australian Workers' Union (AWU) opposed the application, arguing the agreement was not genuinely negotiated, as required by the Fair Work Act 2009. The dispute came before the Commission in Sydney, presided over by Commissioner Dowsett.

The primary legal issue before the Commission was whether the agreement met the genuine negotiation test. This required the Commission to assess whether Decmil and the AWU had genuinely negotiated the terms of the agreement in good faith, and whether the agreement reflected a fair outcome of that negotiation. The Commission considered evidence from both parties, including witness testimonies and documents related to the negotiation process.

The Commission found that Decmil had not genuinely negotiated the agreement with the AWU. Decmil had imposed a 'take it or leave it' approach, presenting the AWU with a predetermined agreement that did not allow for meaningful negotiation. The Commission concluded that the agreement did not reflect a fair outcome of genuine negotiations, and thus did not meet the statutory requirement. Consequently, the application for approval was dismissed.

The Commission ordered that the application for approval of the Decmil Australia Pty Ltd Roy Hill AWU Greenfields Agreement 2013 be dismissed, and that the agreement be not approved.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established