DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Newnham Earthmoving Pty Ltd
(AG2020/637)

NEWNHAM EARTHMOVING PTY LTD AGREEMENT 2020

Building, metal and civil construction industries
DEPUTY PRESIDENT CLANCY	MELBOURNE, 30 MARCH 2020

Application for approval of the Newnham Earthmoving Pty Ltd Agreement 2020.

[1] An application has been made for the approval of an enterprise agreement known as the Newnham Earthmoving Pty Ltd Agreement 2020 (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 Agreement does not cover all of the employees of Newnham Earthmoving Pty Ltd, however, taking into account the factors in s.186(3) and s.186(3A) I am satisfied that the group of employees was fairly chosen.

[3] Newnham Earthmoving Pty Ltd has provided a written undertaking. A copy of the undertaking is attached in Annexure A. I am satisfied that the undertaking will not cause financial detriment to any employee covered by the Agreement and that the undertaking will not result in a substantial change to the Agreement. The undertaking is taken to be a term of the agreement.

[4] Subject to the undertaking 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.

[5] As part of my consideration in reaching this state of satisfaction, I compared both the rates of pay and allowances under the Agreement that would be applicable to employees in the CW2 classification (covering employees with more than 3 months but less than 12 months service) and the arrangements under clause 22 of the Agreement relating to travelling time with the rates of pay and allowances applicable to the CW/ECW 1 (level b) classification under the Building and Construction General On-Site Award 2010, which apply to employees with the same length of service. My comparison led me to be satisfied that employees in the CW2 classification under the Agreement would be better off overall.

[6] The Agreement is approved and, in accordance with s.54, will operate from 6 April 2020. The nominal expiry date of the Agreement is 31 March 2024.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Annexure A

Newnham Earthmoving Pty Ltd was the subject of an application for approval of an enterprise agreement. The application was made by the company and related to the Newnham Earthmoving Pty Ltd Agreement 2020. The matter was heard in the Fair Work Commission. The central dispute revolved around the approval of the enterprise agreement and its compliance with the relevant industrial legislation.

The primary legal issues addressed by the court were whether the enterprise agreement was fairly and properly negotiated and if it complied with the statutory requirements set out in the Fair Work Act 2009. These included ensuring the agreement met the necessary procedural fairness standards and that it did not contain any terms that were contrary to public policy or otherwise unenforceable.

The Fair Work Commission found that the enterprise agreement was indeed fairly and properly negotiated. The commission examined the bargaining process and concluded that it met all necessary requirements. Furthermore, the commission determined that the agreement complied with all statutory provisions and did not contain any terms that would render it unenforceable. Consequently, the application for approval of the Newnham Earthmoving Pty Ltd Agreement 2020 was successful. The commission approved the agreement, allowing it to come into effect as intended.

Newnham Earthmoving Pty Ltd

DECISION

Annexure A

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established