Foundation Civil & Mining Pty Ltd

[2022] FWCA 4176

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Foundation Civil & Mining Pty Ltd

(AG2022/4615)

FCM (Foundation Civil & Mining Pty Ltd) Loy Yang Enterprise Agreement 2022 - 2025

Manufacturing and associated industries
DEPUTY PRESIDENT GOSTENCNIK	MELBOURNE, 29 NOVEMBER 2022

Application for approval of the FCM (Foundation Civil & Mining Pty Ltd) Loy Yang Enterprise Agreement 2022 - 2025

An application has been made for approval of an enterprise agreement known as the FCM (Foundation Civil & Mining Pty Ltd) Loy Yang Enterprise Agreement 2022 - 2025 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Foundation Civil & Mining Pty Ltd. The Agreement is a single enterprise agreement.

The Employer has provided written undertakings. A copy of the undertakings is attached in Annexure A. I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement and that the undertakings will not result in substantial changes to the Agreement. The undertakings are taken to be a term of the agreement.

Subject to the undertakings referred to above, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 as are relevant to this application for approval have been met.

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.

The Construction, Forestry, Maritime, Mining and Energy Union, and the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as theAustralia Manufacturing Workers’ Union, being bargaining representatives for the Agreement, have given notice under s.183 of the Act that they want the Agreement to cover them. In accordance with s.201(2) I note that the Agreement covers the organisations.
The Agreement is approved and, in accordance with s.54 of the Act, will operate from 6 December 2022. The nominal expiry date of the Agreement is 31 March 2025.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

In the case of Foundation Civil & Mining Pty Ltd, the applicant sought approval of the FCM Loy Yang Enterprise Agreement 2022 - 2025. The dispute was lodged with the Fair Work Commission. The applicant, a civil construction company, had entered into an enterprise agreement with its employees, who were represented by the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU). The applicant sought to have the agreement approved and registered with the Commission.

The legal issues before the Commission were whether the enterprise agreement was made in accordance with the relevant provisions of the Fair Work Act 2009 and whether it complied with the good faith bargaining requirements. The Commission had to consider whether the agreement was made without coercion, undue influence, or other unfair practices. The Commission also had to ensure that the agreement provided for a fair and reasonable outcome for both parties.

In considering the application, the Commission took into account the evidence and submissions provided by both parties. The Commission found that the agreement was made in good faith and without any unfair practices. The Commission also found that the agreement provided for a fair and reasonable outcome for both parties. The Commission was satisfied that the agreement met all the legal requirements for approval and registration. The Commission approved the FCM Loy Yang Enterprise Agreement 2022 - 2025 and registered it with the Commission.

The final orders of the Commission were that the FCM Loy Yang Enterprise Agreement 2022 - 2025 be approved and registered with the Commission. The agreement was to be in effect from 1 January 2022 to 31 December 2025. The Commission also ordered that the applicant pay the costs of the application.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established