Fenner Dunlop Australia Pty Ltd

[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

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The applicant, Fenner Dunlop Australia Pty Ltd, sought the approval of a union greenfield agreement related to the Hay Point Expansion 3 Project. The application was made under the Fair Work Act 2009 (Cth). The primary parties involved were the applicant company and the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU). The dispute centred around the terms and conditions of the proposed agreement and whether it met the legal requirements for approval under the Fair Work Act.

The key legal issues before the court were whether the proposed agreement was genuinely a greenfield agreement, whether it complied with the procedural requirements of the Act, and whether the agreement contained provisions that were unfair or unjust. The court needed to determine if the agreement was genuinely intended to establish a new workplace and if the negotiation process was fair and reasonable. Additionally, the court assessed if the terms of the agreement were appropriate for a greenfield project and if they adhered to the standards set out in the Fair Work Act.

The court examined the evidence provided by the applicant and the submissions made by the CFMEU. It found that the proposed agreement was genuinely a greenfield agreement, as it was intended to establish a new workplace. The court also determined that the negotiation process was fair and that the agreement complied with the procedural requirements of the Act. However, the court noted that some provisions of the agreement were potentially unfair and required modification. After considering the submissions from both parties, the court approved the agreement with modifications to address the fairness concerns.

The final orders of the court included the approval of the Fenner Dunlop Australia Pty Ltd Hay Point Expansion 3 Project Union Greenfield Agreement, subject to certain modifications to address the fairness concerns identified. The court also ordered that the modified agreement be given effect in accordance with the provisions of the Fair Work Act.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established