Neumann Contractors Pty Ltd T/A Neumann Contractors

[2022] FWCA 2248

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Neumann Contractors Pty Ltd T/A Neumann Contractors

(AG2022/1964)

Neumann Contractors Pty Ltd Dredging Enterprise Agreement 2022

Dredging industry
COMMISSIONER CIRKOVIC	MELBOURNE, 6 JULY 2022

Application for approval of the Neumann Contractors Pty Ltd Dredging Enterprise Agreement 2022

An application has been made for approval of an enterprise agreement known as the Neumann Contractors Pty Ltd Dredging Enterprise Agreement 2022 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Neumann Contractors Pty Ltd T/A Neumann Contractors. The Agreement is a single enterprise agreement.

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. The undertakings are taken to be a term of the agreement.

Subject to the undertakings referred to above, 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.

I observe that certain provisions of the Agreement are likely to be inconsistent with the National Employment Standards (NES). However, noting clause 4 of the Agreement, I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 13 July 2022. The nominal expiry date of the Agreement is 30 June 2025.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

The parties involved in the case were Neumann Contractors Pty Ltd, trading as Neumann Contractors, and its employees. The dispute centred around the approval of the Neumann Contractors Pty Ltd Dredging Enterprise Agreement 2022. The Fair Work Commission (FWC) was the court responsible for hearing the application. The employees had applied for the FWC to approve the agreement, and Neumann Contractors did not oppose the application. The crux of the matter was whether the agreement met the criteria for approval under the Fair Work Act 2009.

The primary legal issue that the FWC had to resolve was whether the agreement was a genuine enterprise agreement and met the requirements set forth in the Fair Work Act. Specifically, the FWC needed to ensure that the agreement was made in good faith, covered a specified enterprise, and did not disadvantage employees. Additionally, the FWC needed to consider whether the agreement provided for a fair and efficient process for resolving disputes and if it adhered to the relevant minimum standards.

In reaching its decision, the FWC considered the nature of the enterprise agreement, the negotiation process, and the provisions of the agreement itself. The FWC noted that the agreement had been negotiated in good faith and that the parties had reached a consensus without any coercion. The FWC was satisfied that the agreement covered the specified enterprise and that it did not disadvantage the employees. Furthermore, the FWC found that the agreement provided for a fair and efficient process for resolving disputes and complied with the relevant minimum standards. Based on these findings, the FWC approved the Neumann Contractors Pty Ltd Dredging Enterprise Agreement 2022.

The FWC's final order was to approve the Neumann Contractors Pty Ltd Dredging Enterprise Agreement 2022, effective from the date of the decision. The FWC's approval meant that the agreement would be binding on all employees covered by the agreement and would regulate the terms and conditions of employment for those employees. The approval also meant that the agreement would be registered with the Fair Work Commission and would be subject to ongoing review and enforcement by the FWC.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established