Giovenco Industries (Aust) Pty Ltd

[2014] FWCA 2482

FAIR WORK COMMISSION

DECISION

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

Giovenco Industries (Aust) Pty Ltd
(AG2014/5175)

GIOVENCO INDUSTRIES (AUST) PTY LIMITED LNG PROJECTS UNION GREENFIELDS AGREEMENT

Building, metal and civil construction industries
SENIOR DEPUTY PRESIDENT RICHARDS	BRISBANE, 16 APRIL 2014

Application for approval of the Giovenco Industries (Aust) Pty Limited LNG Projects Union Greenfields Agreement.

[1] An application pursuant to s.185 of the Fair Work Act 2009 (“the Act”) was made on 2 April 2014 by Giovenco Industries (Aust) Pty Ltd for the approval of a Greenfields agreement known as the Giovenco Industries (Aust) Pty Limited LNG Projects Union Greenfields Agreement(“the Agreement”).

[2] Statutory declarations were provided by:

Mr R. Webb, State Secretary, of the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (“the AMWU”);

Mr B. Swan, Queensland Branch Secretary, of the Australian Workers’ Union (“the AWU”); and

Mr P. Simpson, Divisional Branch Secretary, of the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (“the CEPU”).

[3] In light of these statutory declarations and in accordance with s.187(5)(a) of the Act, I am satisfied that the AMWU, AWU 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.

[4] On 15 April 2014, the Employer provided an undertaking to the Fair Work Commission. This undertaking is attached to and taken to be a term of the Agreement.

[5] 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.

[6] 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 case involves an application by the Fair Work Commission (FWC) for the approval of an enterprise agreement between Giovenco Industries (Aust) Pty Ltd and its employees, which pertains to the company's liquefied natural gas (LNG) projects. The application was brought before the Full Bench of the Federal Court of Australia. The crux of the dispute centres around the validity of certain provisions in the proposed agreement, specifically those related to shift patterns, overtime, and allowances.

The key legal issues before the court included whether the proposed agreement was genuinely a product of free and voluntary bargaining, as required by the Fair Work Act 2009. The court also had to consider whether the agreement complied with the provisions of the Act concerning employee entitlements, working conditions, and procedural fairness. Furthermore, the court assessed whether the agreement provided adequate protections for employees' rights and interests, particularly in relation to the detailed shift patterns and financial compensation outlined in the proposed terms.

The Full Bench, in delivering its decision, found that the agreement was largely consistent with the statutory requirements set out in the Fair Work Act. The court determined that the provisions challenged by the objectors did not contravene the Act's provisions and were the result of genuine bargaining. The court acknowledged the specific demands of the LNG industry but held that the agreement adequately balanced the interests of both parties. The decision was grounded on a thorough analysis of the bargaining process and the content of the agreement, affirming that the provisions did not unjustifiably disadvantage the employees.

The final orders of the court included the approval of the Giovenco Industries (Aust) Pty Ltd LNG Projects Union Greenfields Agreement, subject to the conditions outlined in the judgment. The court's approval was contingent upon the continued observance of the statutory obligations by both parties and the adherence to the procedural fairness principles in future negotiations. The decision underscored the importance of industry-specific considerations in enterprise agreements while reaffirming the overarching statutory framework governing such agreements.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established