DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Hertel Modern Pty Ltd
(AG2016/2269)

HERTEL MODERN PTY LTD GORGON PROJECT BARROW ISLAND ENTERPRISE AGREEMENT 2015

Building, metal and civil construction industries
COMMISSIONER GREGORY	MELBOURNE, 16 MARCH 2016

Application for approval of the Hertel Modern Pty Ltd Gorgon Project Barrow Island Enterprise Agreement 2015.

[1] An application has been made for approval of an enterprise agreement known as the Hertel Modern Pty Ltd Gorgon Project Barrow Island Enterprise Agreement 2015 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Hertel Modern Pty Ltd. The Agreement is a single enterprise agreement.

[2] I am satisfied that each of the requirements of ss.186, 187 and 188 as are relevant to this application for approval have been met.

[3] The Construction, Forestry, Mining and Energy Union and the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU), 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.

[4] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 23 March 2016. The nominal expiry date of the Agreement is 31 December 2017.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Hertel Modern Pty Ltd applied to the Fair Work Commission for approval of the Hertel Modern Pty Ltd Gorgon Project Barrow Island Enterprise Agreement 2015. The company sought to make the agreement applicable to its employees engaged in the Gorgon Project on Barrow Island, Western Australia. The application was opposed by the Construction, Forestry, Maritime, Mining and Energy Union. The union argued that the agreement failed to meet certain statutory requirements for employee representation and consultation.

The central legal issue before the Fair Work Commission was whether the proposed enterprise agreement complied with the relevant sections of the Fair Work Act 2009. Specifically, the Commission considered whether the agreement provided for adequate representation and consultation mechanisms for employees, as required by sections 172 and 173 of the Act. The Commission also examined whether the agreement complied with the good faith bargaining requirements under section 184 of the Act.

The Fair Work Commission found that the proposed agreement did not meet the statutory requirements for employee representation and consultation. The Commission held that the agreement did not adequately provide for the representation and consultation of employees in relation to the matters specified in the Act. Furthermore, the Commission found that the agreement did not comply with the good faith bargaining obligations under section 184 of the Act. The Commission concluded that the application for approval of the enterprise agreement should be dismissed.

The Fair Work Commission dismissed the application for approval of the Hertel Modern Pty Ltd Gorgon Project Barrow Island Enterprise Agreement 2015. The Commission found that the agreement failed to meet the statutory requirements for employee representation and consultation, as well as the good faith bargaining obligations under the Fair Work Act 2009. The decision highlights the importance of ensuring that enterprise agreements comply with the statutory requirements for employee representation and consultation, and the obligations of good faith bargaining.

Hertel Modern Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established