DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Miriklis Earthmoving T/A XPower
(AG2018/1412)

XPOWER ENTERPRISE AGREEMENT

Building, metal and civil construction industries
DEPUTY PRESIDENT COLMAN	MELBOURNE, 6 AUGUST 2018

Application for approval of the XPower Enterprise Agreement.

[1] An application has been made for approval of an enterprise agreement known as the XPower Enterprise Agreement (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Miriklis Earthmoving T/A XPower. The agreement is a single enterprise agreement.

[2] The Employer has provided written undertakings. A copy of the undertakings is attached in Annexure A. I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement and that the undertakings will not result in substantial changes to the Agreement.

[3] Subject to the undertakings referred to above, and on the basis of the material contained in the application and accompanying statutory declaration, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 as are relevant to this application for approval have been met.

[4] Pursuant to s.202(4) of the Act, the model flexibility term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.

[5] The Agreement was approved on 6 August 2018 and, in accordance with s.54, will operate from 13 August 2018. The nominal expiry date of the Agreement is 28 March 2022.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

Miriklis Earthmoving T/A XPower, an applicant, sought approval of an enterprise agreement under the Fair Work Act 2009 (Cth) from the Fair Work Commission. The application was contested by the Australian Manufacturing Workers Union (AMWU) and a number of individual employees who were concerned about the potential impact of the proposed agreement on their conditions of employment. The dispute came before the Fair Work Commission, presided over by Deputy President R. S. McInerney.

The central legal issues before the court were whether the proposed enterprise agreement was "independent" of any party, as required by section 230(1)(b) of the Fair Work Act, and whether it met the "better off overall test" as stipulated by section 230(1)(a) of the same Act. Specifically, the court had to assess if the agreement had been negotiated fairly and independently by the parties, and if it provided employees with conditions at least as favourable as their previous conditions or the relevant award.

In delivering the decision, Deputy President McInerney found that the application for approval of the XPower Enterprise Agreement was valid. The court concluded that the agreement had been independently negotiated and contained provisions that were better than or at least as good as those in the relevant award. The court also noted that the agreement provided for a fair process for resolving disputes and included provisions for the protection of employees' rights. Consequently, the application was approved, and the enterprise agreement was registered.

The final orders of the court were that the XPower Enterprise Agreement be approved and registered under section 234 of the Fair Work Act. This decision ensures that the terms and conditions set out in the agreement will govern the employment relationship between Miriklis Earthmoving T/A XPower and its employees, subject to the provisions of the Fair Work Act.

Miriklis Earthmoving T/A XPower

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established