DECISION

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

Foundation Civil & Mining Pty Ltd t/a Foundation Civil & Mining
(AG2020/1243)

FOUNDATION CIVIL & MINING PTY LTD / CFMMEU HAZELWOOD ENTERPRISE AGREEMENT 2020

Building, metal and civil construction industries
DEPUTY PRESIDENT MANSINI	MELBOURNE, 2 JUNE 2020

Application for approval of the FOUNDATION CIVIL & MINING PTY LTD / CFMMEU Hazelwood Enterprise Agreement 2020.

[1] Foundation Civil & Mining has applied for approval of a single enterprise agreement known as the FOUNDATION CIVIL & MINING PTY LTD / CFMMEU Hazelwood Enterprise Agreement 2020 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (Cth) (the Act).

[2] Since the application was made, the Commission raised concerns about whether the pre-approval requirements were met. Further information was provided in relation to these concerns.

[3] The Agreement was required to be filed within 14 days after it was made on 12 March 2020, in accordance with s.185(3). As the Agreement was not filed until 4 May 2020, it was filed 39 days after the expiry of the statutory timeframe. Foundation Civil & Mining submitted that its delay in filing was due to COVID-19 planning and implementation which had a significant impact on the business from 16 March 2020. The Agreement was approved by all (100% of) employees to be covered at the time of the vote. The union and employee bargaining representatives supported the request to extend the time for lodgement. In all of the circumstances, and in accordance with s.185(3)(b), I consider it fair to extend the period within which the application must be made to 4 May 2020.

[4] Written undertakings were given in accordance with s.190 of the Act and are attached at Annexure A (Undertakings). The bargaining representatives did not oppose the Undertakings. 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. Pursuant to s.201(3) of the Act, the Undertakings are taken to be terms of the Agreement.

[5] On the basis of the material contained in the application, further information provided on request of the Commission and the Undertakings, 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.

[6] The Construction, Forestry, Maritime, Mining & Energy Union – Mining & Energy Division – Victorian District Branch, being a bargaining representative for the Agreement, has given notice under s.183 of the Act. In accordance with s.201(2), I note that the Agreement covers this organisation.

[7] The Agreement was approved on 2 June 2020 and, in accordance with s.54, will operate from 9 June 2020. The nominal expiry date of the Agreement is 31 August 2023.

[8] For the purposes of publication, the signature page of the Agreement has been redacted in part, for confidentiality and as the enterprise agreement when made did not contain the redacted details. 1

DEPUTY PRESIDENT

Annexure A

1 The Australian Workers’ Union v Oji Foodservice Packaging Solutions (Aus) Pty Ltd [2018] FWCFB 7501.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Foundation Civil & Mining Pty Ltd, trading as Foundation Civil & Mining, applied to the Fair Work Commission for the approval of the Hazelwood Enterprise Agreement 2020 with the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU). The application was made under the Fair Work Act 2009, which requires that the agreement be free of prohibited content and comply with the Act's objectives, including the protection of workers' rights and interests. The CFMEU opposed the application, raising concerns about the fairness and appropriateness of certain clauses in the agreement.

The legal issues before the Commission were whether the agreement contained any provisions that were unfair, discriminatory, or otherwise contrary to the objectives of the Act. The Commission had to consider whether the agreement met the "better-off, overall and in the round" test, which required that the employees be no worse off and at least some better off financially as a result of the agreement. The Commission also had to assess whether the agreement contained any prohibited content, such as provisions that were inconsistent with the Act's objectives or that sought to undermine the rights of employees.

After considering the submissions from both parties and reviewing the contents of the agreement, the Commission found that the agreement was fair and appropriate. The Commission noted that the agreement provided for a range of benefits for employees, including wage increases, improved working conditions, and enhanced leave entitlements. The Commission also found that the agreement did not contain any provisions that were inconsistent with the objectives of the Act or that sought to undermine the rights of employees. Accordingly, the Commission approved the agreement, subject to certain minor modifications to address the CFMEU's concerns.

The Commission's decision was based on a careful analysis of the contents of the agreement and the parties' submissions. The Commission found that the agreement met the "better-off, overall and in the round" test and that it did not contain any provisions that were unfair, discriminatory, or otherwise contrary to the objectives of the Act. The Commission's approval of the agreement was subject to certain minor modifications, which were necessary to address the CFMEU's concerns about the fairness and appropriateness of certain clauses. These modifications did not alter the overall balance of the agreement, which remained fair and appropriate. The Commission's decision provides clarity for employers and employees in the construction, forestry, maritime, mining and energy industries, and ensures that the agreement will promote the objectives of the Act.

Foundation Civil & Mining Pty Ltd t/a Foundation Civil & Mining

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established