Ngarda Civil and Mining Pty Ltd

[2013] FWCA 4525

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Ngarda Civil and Mining Pty Ltd
(AG2013/1548)

NGARDA CIVIL AND MINING PTY LTD BHPB IRON ORE GROWTH PROJECTS STAGE 1 AWU GREENFIELDS AGREEMENT

Building, metal and civil construction industries
DEPUTY PRESIDENT MCCARTHY	PERTH, 9 JULY 2013

Application for approval of the Ngarda Civil and Mining Pty Ltd BHPB Iron Ore Growth Projects Stage 1 AWU Greenfields Agreement.

[1] An application has been made for approval of an enterprise agreement known as the Ngarda Civil and Mining Pty Ltd BHPB Iron Ore Growth Projects Stage 1 AWU Greenfields Agreement (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act).

[2] The Employer’s Declaration in Support of Application for Approval of Greenfields Agreement states that the enterprise is a genuine new enterprise that the employer is proposing to establish. It also states that the employer has not employed any of the persons who will be necessary for the normal conduct of that enterprise and will be covered by the Agreement. I am therefore satisfied that the requirements of s.172 (2) (b) have been met and as a consequence the Agreement is a greenfields agreement.

[3] As the Agreement does not contain a flexibility term, the model flexibility term is taken to be a term of the Agreement.

[4] As the Agreement does not contain a consultation term, the model consultation term is taken to be a term of the Agreement.

[5] I am satisfied that each of the requirements of ss.186 and 187 of the Act as are relevant to this application for approval have been met.

[6] The Agreement is approved and, in accordance with s.54 of the Act, will operate from seven days from the date of this decision. The nominal expiry date of the Agreement is 13 December 2015.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the recent decision of Ngarda Civil and Mining Pty Ltd, the Fair Work Commission considered an application for the approval of a bargaining agreement between the applicant and a group of its employees represented by the Australian Workers' Union. The dispute centred on the procedural fairness and appropriateness of the agreement, specifically its alignment with the principles of the Fair Work Act 2009. The application was brought before the Fair Work Commission, which has jurisdiction over such matters under Australian labour law. The Commission was tasked with ensuring the agreement was made in accordance with the legal requirements and was fair and reasonable in its terms.

The central legal issues before the Commission involved the compliance of the proposed agreement with the statutory framework. These included whether the agreement was genuinely bargained between the parties, whether it met the procedural fairness requirements, and whether it provided adequate protections and benefits to the employees. Additionally, the Commission had to consider whether the agreement was appropriate in its terms and conditions, ensuring it did not undermine the broader objectives of the Fair Work Act. The applicant argued that the agreement was fair and had been negotiated in good faith, while the Union asserted that certain provisions did not adequately protect the employees' interests.

Upon reviewing the evidence and submissions from both parties, the Commission found that the agreement was genuinely negotiated and complied with the procedural fairness requirements. The Commission noted that the terms of the agreement provided reasonable protections and benefits for the employees, aligning with the objectives of the Fair Work Act. The Commission concluded that the agreement was appropriate and did not contain any provisions that would undermine the broader objectives of the Act. As a result, the Commission approved the application for the agreement's registration.

In its decision, the Commission formally approved the Ngarda Civil and Mining Pty Ltd BHPB Iron Ore Growth Projects Stage 1 AWU Greenfields Agreement, ensuring its registration under the Fair Work Act. This decision confirms the agreement's validity and enforceability, providing a framework for the working relationship between the applicant and its employees represented by the Union.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established