Fenner Dunlop Australia Pty Ltd

[2013] FWCA 7630

[2013] FWCA 7630

FAIR WORK COMMISSION

DECISION

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

Fenner Dunlop Australia Pty Ltd
(AG2013/9578)

FENNER DUNLOP AUSTRALIA PTY LTD HAY POINT EXPANSION 3 PROJECT UNION GREENFIELD AGREEMENT

Building, metal and civil construction industries
SENIOR DEPUTY PRESIDENT RICHARDS	BRISBANE, 2 OCTOBER 2013

Application for approval of the Fenner Dunlop Australia 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 26 September 2013 by Fenner Dunlop Australia Pty Ltd for the approval of a Greenfields agreement known as the Fenner Dunlop Australia Pty Ltd Hay Point Expansion 3 Project Union Greenfield Agreement(“the Agreement”).

[2] Statutory declarations were provided by:

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



• 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 K. McKenzie, Deputy Divisional Branch Secretary, of the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (“the CEPU”).

[1] In light of these statutory declarations and in accordance with s.187(5)(a) of the Act, I am satisfied that the CFMEU, 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.

[2] On 2 October 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. As it purports to apply to the consultation term, the undertaking is of no effect, for reasons outlined in my decision [2012] FWA 3037. Consequently and also for reasons outlined in that decision, the model consultation term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.

[3] 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.

[4] I note that the consultation clause does not conform with s.205(1)(b) of the Act. Pursuant to s.205(2) of the Act, the model consultation term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.

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

SENIOR DEPUTY PRESIDENT

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