Decmil Australia Pty Ltd T/A Decmil

[2013] FWCA 9068

[2013] FWCA 9068

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Decmil Australia Pty Ltd T/A Decmil
(AG2013/1441)

DA AGREEMENT 2013

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

Application for approval of the DA Agreement 2013.

[1] An application has been made for approval of an enterprise agreement known as the DA Agreement 2013 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the FW Act). The Agreement is a single-enterprise agreement.

[2] On 8 November 2013, I issued a Decision 1 and invited the Construction, Forestry, Mining and Energy Union (the CFMEU) to provide further submissions in relation to the application. In that decision I identified concerns about the meeting of the requirements of the FW Act2. I also identified the undertaking that Decmil Australia Pty Ltd T/A Decmil (Decmil) was prepared to provide to satisfy that concern3. I further indicated an inclination to accept that undertaking4.

[3] On 11 November 2013, the CFMEU responded requesting confirmation as to whether the Commission had sought the views of each bargaining representative prior to accepting the undertaking provided by Decmil. The CFMEU also pointed out that s.190(4) of the FW Act obliges the Fair Work Commission (the FWC) to seek the views of bargaining representatives before accepting undertakings.

[4] Indeed it was for this very reason that in my decision of 8 November 2013 I invited bargaining representatives to communicate any views about the undertaking to my office. The decision was emailed to those addresses previously provided 5.

[5] The CFMEU did not assert in their communication of 11 November 2013 as to whether they considered themselves to be a bargaining representative or not. For the purposes of consideration of approval of the Agreement, I will regard the CFMEU as being a bargaining representative. The CFMEU expressed the view that a change to the scope or coverage of the Agreement is a substantial change. I have taken that view into account.

[6] The other bargaining representatives did not advise my office as requested. I therefore sought information from Decmil. Decmil advised that they have kept in contact with each of the bargaining representatives and on-sent any material or notices from the FWC. They also advised that none of the bargaining representatives were currently employed by Decmil. Decmil conveyed that from their discussions at least seven of the nine bargaining representatives agreed with the undertaking.

[7] I have taken these views as conveyed into account. I accept the undertaking and am satisfied as it meets my concerns.

[8] 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.

[9] A copy of the undertaking is attached to the Agreement. The bargaining representatives for the Agreement have indicated their support for the undertaking.

[10] 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

 1   [2013] FWC 8252 [PR543577]

 2   Ibid para 24

 3   Ibid para 28

 4   Ibid para 28

 5   Ibid para 31

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