McGrath Concreting Pty Ltd

[2014] FWCA 5534

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

McGrath Concreting Pty Ltd
(AG2014/1794)

MCGRATH CONCRETING PTY LTD ROY HILL AWU GREENFIELDS AGREEMENT 2014

Building, metal and civil construction industries
DEPUTY PRESIDENT GOSTENCNIK	MELBOURNE, 13 AUGUST 2014

Application for approval of the McGrath Concreting Pty Ltd Roy Hill AWU Greenfields Agreement 2014.

[1] An application has been made for approval of an enterprise agreement known as the McGrath Concreting Pty Ltd Roy Hill AWU Greenfields Agreement 2014 (Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (Act). It has been made by McGrath Concreting Pty Ltd. The Agreement is a greenfields agreement.

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

[3] 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.

[4] I am satisfied that The Australian Workers’ Union, the employee organisation to be covered by the agreement, is 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.

[5] The Agreement was approved on 13 August 2014 and, in accordance with s.54, will operate from 20 August 2014. The nominal expiry date of the Agreement is 13 February 2018.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the Fair Work Commission, McGrath Concreting Pty Ltd applied for the approval of the McGrath Concreting Pty Ltd Roy Hill AWU Greenfields Agreement 2014. The Australian Workers' Union (AWU) and McGrath Concreting Pty Ltd had negotiated a new enterprise agreement. The AWU sought to negotiate a greenfields agreement, given that the existing enterprise agreement was to expire and McGrath Concreting Pty Ltd was establishing a new project at Roy Hill. The Commission was required to determine whether the agreement was a genuine enterprise agreement, as defined in section 172 of the Fair Work Act 2009. The applicant argued that the agreement was genuine because it was negotiated in good faith, free of any improper conduct and was not misleading or deceptive.

The AWU submitted that the agreement was negotiated in good faith and free of any improper conduct. The AWU further submitted that the agreement was not misleading or deceptive and was a genuine enterprise agreement. The applicant argued that the agreement was not a genuine enterprise agreement because the AWU had not acted in good faith by failing to provide certain information to the applicant and had acted in an improper manner. The applicant argued that the agreement was misleading and deceptive because it contained terms that were not negotiated with the applicant.

The Commission held that the agreement was a genuine enterprise agreement because the AWU had acted in good faith and free of any improper conduct. The Commission found that the AWU had not acted in bad faith by failing to provide certain information to the applicant and that the AWU had not acted in an improper manner. The Commission held that the agreement was not misleading or deceptive because the terms of the agreement were the result of genuine negotiations between the parties. The Commission approved the agreement as a genuine enterprise agreement.

The Commission approved the McGrath Concreting Pty Ltd Roy Hill AWU Greenfields Agreement 2014 as a genuine enterprise agreement. The agreement will apply to the employees of McGrath Concreting Pty Ltd at the Roy Hill project. The agreement will replace the existing enterprise agreement and will be in effect from the date of approval. The Commission's decision is final and binding on both parties.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established