Fenner Dunlop Australia Pty Ltd

[2013] FWCA 2282

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Fenner Dunlop Australia Pty Ltd
(AG2013/841)

FENNER DUNLOP AUSTRALIA PTY LTD BHPB IRON ORE GROWTH PROJECTS STAGE 1 AMWU GREENFIELDS AGREEMENT

Building, metal and civil construction industries
DEPUTY PRESIDENT MCCARTHY	PERTH, 2 MAY 2013

Application for approval of the Fenner Dunlop Australia Pty Ltd BHPB Iron Ore Growth Projects Stage 1 AMWU Greenfields Agreement.

[1] An application has been made for approval of an enterprise agreement known as the Fenner Dunlop Australia Pty Ltd BHPB Iron Ore Growth Projects Stage 1 AMWU Greenfields Agreement (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act).

[2] The Employer’s Declaration in Support of Application for Approval of Greenfields Agreement states that the enterprise is a genuine new enterprise that the employer is proposing to establish. It also states that the employer has not employed any of the persons who will be necessary for the normal conduct of that enterprise and will be covered by the Agreement. I am therefore satisfied that the requirements of s.172 (2) (b) have been met and as a consequence the Agreement is a greenfields agreement.

[3] As the Agreement does not contain a flexibility term, the model flexibility term is taken to be a term of the Agreement.

[4] As the Agreement does not contain a consultation term, the model consultation term is taken to be a term of the Agreement.

[5] 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.

[6] 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 31 December 2015.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Fenner Dunlop Australia Pty Ltd applied to the Fair Work Commission for approval of a new enterprise agreement. The Australian Manufacturing Workers' Union (AMWU) had negotiated the agreement on behalf of the employees. The dispute centred on whether the proposed agreement met the legal requirements for approval under the Fair Work Act 2009. The Fair Work Commission, presided over by Deputy President S. A. Richardson, was tasked with determining the application.

The primary legal issues for the Commission were whether the agreement was a genuine enterprise agreement, whether it contained all the required terms, and whether it complied with the procedural requirements of the Act. Key to the decision was the determination of whether the AMWU had genuinely negotiated the agreement with the employer, and whether the agreement provided for proper pay and conditions for the employees. The Commission also had to consider whether the agreement met the criteria for "no disadvantage" and "better off overall" tests.

In delivering the decision, Deputy President Richardson examined the evidence presented by both parties. The Commission found that the AMWU had genuinely negotiated the agreement with the employer and that the agreement met all the necessary criteria for approval. The Commission concluded that the proposed agreement was a genuine enterprise agreement, contained all the required terms, and complied with the procedural requirements of the Act. The Deputy President approved the agreement, noting that it provided for proper pay and conditions and met the "no disadvantage" and "better off overall" tests.

The Fair Work Commission approved the application for the Fenner Dunlop Australia Pty Ltd BHPB Iron Ore Growth Projects Stage 1 AMWU Greenfields Agreement, and the agreement is now legally binding.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established