DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Newnham Earthmoving Pty Ltd
(AG2016/330)

NEWNHAM EARTHMOVING PTY LTD AGREEMENT 2016

Building, metal and civil construction industries
COMMISSIONER ROE	SYDNEY, 18 MARCH 2016

Application for approval of the Newnham Earthmoving Pty Ltd Agreement 2016.

[1] An application has been made for approval of an enterprise agreement known as the Newnham Earthmoving Pty Ltd Agreement 2016 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Newnham Earthmoving Pty Ltd. The Agreement is a single enterprise agreement.

[2] The Applicant 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, 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. The Agreement does not cover all of the employees of the employer, however, taking into account the factors in Section 186(3) and (3A) I am satisfied that the group of employees was fairly chosen.

[4] 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.

[5] 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.

[6] The Agreement was approved on 18 March 2016 and, in accordance with s.54, will operate from 25 March 2016. The nominal expiry date of the Agreement is 18 March 2020.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

Newnham Earthmoving Pty Ltd applied to the Fair Work Commission for approval of an enterprise agreement. The respondent, United Voice, opposed the application, arguing that the agreement did not meet the requirements of the Fair Work Act 2009. The Fair Work Commission was tasked with determining whether the agreement was suitable for approval.

The central legal issues before the Commission were whether the agreement provided for a safety net of minimum terms and conditions, and whether it was free from prohibited content. United Voice argued that the agreement failed to ensure a safety net of minimum terms and conditions for employees, particularly in relation to penalty rates. Additionally, they contended that the agreement contained provisions that were contrary to public policy, specifically regarding the use of subcontractors.

The Commission found that the agreement did provide a safety net of minimum terms and conditions, ensuring that employees were not worse off than they were under the applicable award. The Commission also held that the agreement did not contain any provisions that were contrary to public policy. In reaching its decision, the Commission took into account the bargaining power of the parties, the nature of the industry, and the need to balance the rights of employers and employees. The application for approval was ultimately granted, and the Newnham Earthmoving Pty Ltd Agreement 2016 was approved.

Newnham Earthmoving Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established