Independent Construction & Fabrication Pty Ltd

[2024] FWCA 2842

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185 - Application for approval of a greenfields agreement

Independent Construction & Fabrication Pty Ltd

(AG2024/2682)

AMWU & INDEPENDENT CONSTRUCTION AND FABRICATION PTY LTD METAL & ENGINEERING ON-SITE CONSTRUCTION AGREEMENT 2023-2026

Building, metal and civil construction industries
COMMISSIONER MIRABELLA	MELBOURNE, 6 AUGUST 2024

Application for approval of the AMWU & Independent Construction and Fabrication Pty Ltd Metal & Engineering On-Site Construction Agreement 2023-2026.

An application has been made for approval of a greenfields agreement known as the AMWU & Independent Construction and Fabrication Pty Ltd Metal & Engineering On-Site Construction Agreement 2023-2026 (Agreement). The application was made by Independent Construction & Fabrication Pty Ltd pursuant to s.185 of the Fair Work Act 2009 (Act).

The Agreement meets the requirements of s.172(2)(b) of the Act. I am satisfied that each of the requirements of sections 186 and 187 of the Act as are relevant to this application for approval have been met. In accordance with s.187(5)(a) of the Act, I am satisfied that the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) 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. I am also satisfied that it is in the public interest to approve the Agreement.

Pursuant to s.53(2)(b) of the Act, I note the Agreement was made with the AMWU and that the Agreement covers the AMWU.

The Agreement was approved on 6 August 2024 and, in accordance with s.54, will operate from 13 August 2024. The nominal expiry date of the Agreement is 30 June 2026.

Variation

On 29 July 2024, my chambers notified parties that the Agreement lodged appears to contain a referencing error in that clause 4 referred to the old award, the Building and Construction General On-site Award 2010. On 30 July 2024, the AMWU filed a revised copy of the Agreement amending the error identified. The AMWU sought that the Agreement be amended in accordance with s.218A of the Act on the basis that the reference to the old award was an obvious error.

I am satisfied this error is an obvious error, defect or irregularity. Pursuant to s.218A of the Act I will amend the Agreement to replace the word ‘2010’ in clause 4 with ‘2020’ to reflect the name of the current award.

The variation will operate from 6 August 2024.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The parties involved in this case were the Australian Manufacturing Workers' Union (AMWU) and Independent Construction & Fabrication Pty Ltd, who were in dispute over the terms of their Metal & Engineering On-Site Construction Agreement for the period 2023-2026. The matter was brought before the Fair Work Commission (FWC), which was tasked with approving the agreement. The AMWU sought to have the agreement approved, while Independent Construction & Fabrication Pty Ltd had reservations about certain aspects of the proposed terms.

The primary legal issue before the FWC was whether the proposed agreement met the criteria for approval under the Fair Work Act 2009. The AMWU argued that the agreement was fair and balanced, while Independent Construction & Fabrication Pty Ltd contended that some provisions were overly restrictive and would impact their operational flexibility. The FWC had to determine whether the agreement contained provisions that were contrary to the principles of good faith bargaining, and whether the terms were reasonable and necessary to achieve a fair and efficient workplace.

After careful consideration of the arguments presented by both parties, the FWC determined that the agreement, with certain modifications, met the criteria for approval. The FWC found that while most provisions of the agreement were fair and balanced, some clauses were deemed to be overly restrictive. The FWC made several amendments to the agreement to address these concerns, ensuring that the final terms were fair and reasonable for both parties. The FWC approved the amended agreement, which was subsequently implemented between the AMWU and Independent Construction & Fabrication Pty Ltd.

The final orders of the FWC included the approval of the Metal & Engineering On-Site Construction Agreement 2023-2026 with the modifications made by the FWC. These modifications addressed the concerns raised by Independent Construction & Fabrication Pty Ltd and ensured that the agreement was fair and balanced for both parties. The FWC also ordered that the parties adhere to the terms of the approved agreement for the duration of the agreement.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established