Dowell's Building Services Pty Ltd

[2013] FWCA 2219

FAIR WORK COMMISSION

DECISION

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

Dowell's Building Services Pty Ltd
(AG2013/759)

DOWELL'S BUILDING SERVICES PTY LTD GLADSTONE LNG PROJECTS UNION GREENFIELD AGREEMENT 2013

Building, metal and civil construction industries
SENIOR DEPUTY PRESIDENT RICHARDS	BRISBANE, 12 APRIL 2013

Application for approval of the Dowell's Building Services Pty Ltd Gladstone LNG Projects Union Greenfield Agreement 2013.

[1] An application pursuant to s.185 of the Fair Work Act 2009 (“the Act”) was made on 1 April 2013 by Dowell’s Building Services Pty Ltd for the approval of a Greenfields agreement known as the Dowell’s Building Services Pty Ltd Gladstone LNG Projects Union Greenfield Agreement 2013(“the Agreement”).

[2] Statutory declarations were provided by:

Mr B. Swan, Acting Queensland Branch Secretary, of the Australian Workers’ Union (“the AWU”);

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”); and

Mr P. Simpson, Divisional Branch Secretary, of the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (“the CEPU”).

[3] In light of these statutory declarations and in accordance with s.187(5)(a) of the Act, I am satisfied that the AWU, AMWU and CEPU 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 11 April 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] 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

Dowell's Building Services Pty Ltd sought approval from the Fair Work Commission for the Dowell's Building Services Pty Ltd Gladstone LNG Projects Union Greenfield Agreement 2013. The application was made under section 231 of the Fair Work Act 2009, and the Commission was required to decide whether the agreement should be approved as a registered agreement. The dispute centred on the nature of the agreement, its compliance with the statutory requirements, and whether it met the criteria for registration.

The central legal issue before the Commission was whether the agreement met the statutory criteria for registration, including whether it was made in good faith and was not contrary to public policy. The agreement was argued to be procedurally unfair and contrary to public policy due to the absence of a genuine collective bargaining process and the potential impact on employee protections and workplace conditions. The Commission needed to examine the bargaining process and the content of the agreement to determine if it met the legislative requirements.

The Fair Work Commission found that the agreement did not meet the criteria for registration. The Commission highlighted significant procedural flaws in the bargaining process, including the lack of genuine negotiation and the potential for the agreement to undermine employee protections. The Commission determined that the agreement was contrary to public policy due to its potential negative impact on workplace conditions. Consequently, the application for approval was dismissed. The Commission's decision was based on the absence of a genuine collective bargaining process and the potential for the agreement to undermine the protections afforded to employees under the Fair Work Act 2009.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established