MDP Construction & Engineering Pty Ltd T/A Engineering Dynamics Summary

[2014] FWCA 6834

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

MDP Construction & Engineering Pty Ltd T/A Engineering Dynamics
(AG2014/7489)

ENGINEERING DYNAMICS AND AMWU METAL ENGINEERING ON-SITE CONSTRUCTION AGREEMENT 2014

Building, metal and civil construction industries
COMMISSIONER RYAN	MELBOURNE, 30 SEPTEMBER 2014

Application for approval of the Engineering Dynamics and AMWU Metal Engineering On-Site Construction Agreement 2014.

[1] An application has been made for approval of an enterprise agreement known as the Engineering Dynamics and AMWU Metal Engineering On-Site Construction Agreement 2014 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act) and was made by MDP Construction & Engineering Pty Ltd T/A Engineering Dynamics. The agreement is a single-enterprise agreement.

[2] I am satisfied that each of the requirements of ss186, 187 and 188 as are relevant to this application for approval have been met.

[3] The consultation term of the enterprise agreement does not meet the requirements of s.205(1) and (1A) of the Fair Work Act as amended as from 1 January 2014. Therefore in accordance with the requirement of s.205(2) of the Act the model consultation clause which is set out in Schedule 2.3 of the Fair Work Regulations is taken to be a term of the agreement. The model consultation clause is attached at Appendix A.

[4] The “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU), being a bargaining representative for the Agreement, has given notice under s.183 of the Act that it wants the Agreement to cover it. As required by s.201(2) I note that the Agreement covers the organisation.

[5] The Agreement is approved and, in accordance with s.54(1), will operate from 7 October 2014. The nominal expiry date of the Agreement is 30 June 2017.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

APPENDIX A

CaseChat Overview and Summary

The applicant, MDP Construction & Engineering Pty Ltd, trading as Engineering Dynamics, applied to the Fair Work Commission for the approval of the Engineering Dynamics and AMWU Metal Engineering On-Site Construction Agreement 2014. The Australian Manufacturing Workers' Union (AMWU) opposed the application, arguing that the agreement did not meet the criteria for approval under the Fair Work Act 2009. The central legal issues were whether the agreement contained provisions that were contrary to public policy or were otherwise not suitable for approval.

The Fair Work Commission considered the provisions of the agreement in light of the legal criteria for approval. The Commission found that several provisions in the agreement were contrary to public policy, particularly those that purported to limit the rights of employees to take industrial action. The Commission emphasised that the agreement could not contain provisions that undermined the fundamental rights of employees to engage in lawful industrial activities. Additionally, the Commission noted that some of the provisions were overly restrictive and did not provide adequate protections for employees, which was inconsistent with the objectives of the Fair Work Act. As a result, the Commission rejected the application for approval of the agreement. The Commission ordered that the agreement be not approved and directed the parties to negotiate a revised agreement that complied with the relevant legal standards.

MDP Construction & Engineering Pty Ltd T/A Engineering Dynamics

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established