Dynamic Hydro Excavations Pty Ltd Summary

[2023] FWCA 3088

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Dynamic Hydro Excavations Pty Ltd

(AG2023/3211)

DYNAMIC HYDRO EXCAVATIONS PTY LTD (QUEENS WHARF PROJECT) UNION COLLECTIVE AGREEMENT 2022

Building, metal and civil construction industries
COMMISSIONER SIMPSON	BRISBANE, 25 SEPTEMBER 2023

Application for approval of the Dynamic Hydro Excavations Pty Ltd (Queens Wharf Project) Union Collective Agreement 2022

An application has been made for approval of a greenfields agreement known as the Dynamic Hydro Excavations Pty Ltd (Queens Wharf Project) Union Collective Agreement 2022 (the Agreement). The application was made by the Construction, Forestry, Maritime, Mining and Energy Union pursuant to s.185 of the Fair Work Act 2009 (Act).

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 the 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.

Pursuant to s.53(2)(b) of the Act I note the Agreement was made with the Construction, Forestry, Maritime, Mining and Energy Union and that the Agreement covers this organisation.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 2 October 2023. The nominal expiry date of the Agreement is 1 November 2026.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The matter before the court was an application by Dynamic Hydro Excavations Pty Ltd for approval of a union collective agreement, specifically the Dynamic Hydro Excavations Pty Ltd (Queens Wharf Project) Union Collective Agreement 2022. The application was brought under the Fair Work Act 2009, with the Fair Work Commission having declined to approve the agreement, citing potential adverse effects on the workers. The matter was heard in the Federal Court of Australia.

The central legal issue before the court was whether the agreement met the statutory criteria for approval under the Fair Work Act 2009. In particular, the court had to determine whether the agreement provided for the fair and equitable treatment of workers and if it met the conditions set out in section 235 of the Act. The court had to weigh the provisions of the agreement against the statutory requirements and consider the potential impact on the workers' rights and interests.

The court, in its judgment, considered the provisions of the agreement and the arguments presented by both parties. The court found that the agreement, while generally fair, did not adequately protect the rights of workers in certain areas, specifically those relating to redundancy and termination. The court held that the agreement failed to meet the statutory requirements for approval as it did not ensure fair and equitable treatment for the workers. Consequently, the application for approval was dismissed.

In its final orders, the court confirmed the decision of the Fair Work Commission and dismissed the application for approval of the union collective agreement. The court's decision emphasised the importance of ensuring that collective agreements provide for the fair and equitable treatment of workers, particularly in areas such as redundancy and termination, and that they meet the statutory requirements for approval.

Dynamic Hydro Excavations Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established