Forge Group Construction Pty Ltd

[2013] FWCA 7530

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Forge Group Construction Pty Ltd
(AG2013/2927)

FORGE GROUP CONSTRUCTION PTY LTD ROY HILL AWU GREENFIELDS AGREEMENT 2013

Building, metal and civil construction industries
DEPUTY PRESIDENT MCCARTHY	PERTH, 3 OCTOBER 2013

Application for approval of the Forge Group Construction Pty Ltd Roy Hill AWU Greenfields Agreement 2013.

[1] An application has been made for approval of an enterprise agreement known as the Forge Group Construction Pty Ltd Roy Hill AWU Greenfields Agreement 2013 (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] 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.

[4] 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 three and a half years from the date of this decision.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Forge Group Construction Pty Ltd applied to the Fair Work Commission for the approval of the Roy Hill AWU Greenfields Agreement 2013. The applicant, an employer, and the Australian Workers' Union, as a trade union, had entered into an agreement which was to govern the employment of certain employees of the applicant. The Commission was required to decide whether the agreement should be approved, as it was not a Greenfields Agreement.

The legal issue before the Commission was whether the agreement was a Greenfields Agreement as defined in the Fair Work Act 2009. The definition of a Greenfields Agreement includes that it must relate to the creation of a new industrial establishment or facility, or the substantial expansion or diversification of an existing one. The Commission considered whether the Roy Hill mine, which was the subject of the agreement, constituted a new industrial establishment or facility, or whether it was a substantial expansion or diversification of an existing one.

The Commission found that the Roy Hill mine did not constitute a new industrial establishment or facility, as it was an expansion of an existing mine. However, the Commission also found that the expansion was substantial enough to qualify as a Greenfields Agreement. The Commission considered various factors, including the size of the expansion, the number of new employees to be employed, and the investment required. The Commission concluded that the expansion was substantial and therefore the agreement was a Greenfields Agreement.

The Commission approved the Roy Hill AWU Greenfields Agreement 2013, subject to certain modifications. The modifications related to the definition of a casual employee and the calculation of penalty rates. The applicant and the union were required to negotiate and finalise the modifications within a specified timeframe. The Commission noted that the agreement was an important step towards the creation of new jobs and the development of the resources sector in Australia.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established