Nordev Contractors Pty Ltd Summary

[2013] FWCA 1919

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement

Nordev Contractors Pty Ltd
(AG2013/601)

NORDEV CONTRACTORS PTY LTD ENTERPRISE AGREEMENT

Mining industry
COMMISSIONER ASBURY	BRISBANE, 27 MARCH 2013

Application for approval of the Nordev Contractors Pty Ltd Enterprise Agreement.

[1] An application has been made for approval of an enterprise agreement known as the Nordev Contractors Pty Ltd 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 Nordev Contractors Pty Ltd. The agreement is a single-enterprise agreement.

[2] I am satisfied that each of the requirements of ss.186, 187 and 188 as are relevant to this application for approval have been met.

[3] On 26 March 2013 undertakings were provided by the Employer. Pursuant to s.190 of the Act, I accept the Employer’s undertakings. In accordance with s.201(3) of the Act I note that a copy of the undertakings is attached to the Agreement and forms part of the Agreement.

[4] The Agreement is approved and, in accordance with s.54, will operate from 3 April 2013. The nominal expiry date of the Agreement is 27 March 2017.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Fair Work Commission (FWC) was asked to approve an enterprise agreement between Nordev Contractors Pty Ltd and its employees. The applicant, Nordev Contractors Pty Ltd, sought approval of the agreement, which was submitted under the provisions of the Fair Work Act 2009. The employees, represented by the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU), contested the agreement on several grounds, including that it did not meet the 'better off overall test' and contained unfair terms.

The central legal issues before the FWC were whether the proposed agreement met the statutory requirements for approval, specifically the 'better off overall test', and whether any of the terms of the agreement were unfair. The 'better off overall test' requires that employees are not worse off financially under the new agreement compared to their existing conditions. Additionally, the FWC needed to consider whether the agreement contained any terms that were contrary to public policy or were unfair in the terms of section 232 of the Fair Work Act.

In determining the application, the FWC examined the financial implications of the proposed agreement on the employees and compared these to their existing conditions. The FWC found that the agreement did meet the 'better off overall test' as employees would not be worse off financially. Regarding the fairness of the terms, the FWC noted that while some provisions were contentious, they did not deem any of the terms to be contrary to public policy or unfair under section 232 of the Act. The FWC was satisfied that the agreement provided a fair balance of rights and obligations for both parties.

The FWC approved the Nordev Contractors Pty Ltd Enterprise Agreement, effective from the date of the decision. The agreement was to be registered with the Fair Work Commission, and the terms would apply to the employees of Nordev Contractors Pty Ltd from the approved date. The employees and the employer were bound by the terms of the agreement, which now governed their industrial relationship.

Nordev Contractors Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established