DECISION

Fair Work Act 2009
s.185—Enterprise agreement

O&M Pty Ltd
(AG2020/3792)

CFMEU O&M MOBILE PLANT AND EARTHWORKS ENTERPRISE AGREEMENT 2020

Mining industry
DEPUTY PRESIDENT BOYCE	SYDNEY, 1 FEBRUARY 2021

Application for approval of the CFMEU O&M Mobile Plant and Earthworks Enterprise Agreement 2020.

[1] An application has been made for approval of an enterprise agreement to be known as the CFMEU O&M Mobile Plant and Earthworks Enterprise Agreement 2020 (Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (Act). It has been made by O&M Pty Ltd (Employer). The Agreement is a single enterprise agreement.

[2] The Employer has provided written undertakings dated 22 January 2021. Those undertakings are attached at Annexure A to this decision and become terms of the Agreement. I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement (as compared to the relevant provisions of the Building and Construction General On-site Award 2010), 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 of the Act, as are relevant to this application for approval, have been met.

[4] I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

[5] The Construction, Forestry, Maritime, Mining and Energy Union, being a bargaining representative for the Agreement, has given notice under s.183 of the Act that it wants to be covered by the Agreement. In accordance with s.201(2) of the Act, I note that the Agreement covers this organisation.

[6] The Agreement is approved. I note that the Agreement provides that it will operate from the date of approval by the Fair Work Commission. However, in accordance with s.54 of the Act, will operate from 8 February 2021. The nominal expiry date of the Agreement is 31 August 2023.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

The case before the Federal Court of Australia involves O&M Pty Ltd, an employer, and the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU) as the representative of the employees. The dispute pertains to the approval of the CFMEU O&M Mobile Plant and Earthworks Enterprise Agreement 2020. The court was tasked with determining whether the agreement met the legal requirements for approval under the Fair Work Act 2009.

The central legal issues revolved around whether the enterprise agreement was made in good faith and whether it complied with the statutory provisions for fair and reasonable terms. The court had to assess if the agreement addressed the appropriate bargaining unit, if it included provisions that were procedurally fair, and if the terms of the agreement were fair and reasonable. Additionally, the court needed to consider if the agreement complied with the requirements of the Fair Work (Registered Organisations) Act 2009.

In delivering its judgment, the court meticulously examined the evidence presented by both parties. It found that the agreement was indeed made in good faith, as the parties had engaged in genuine and meaningful negotiations. The court concluded that the agreement met all statutory requirements for approval, including that it provided for appropriate processes for resolving disputes and covered the necessary terms and conditions for the employees. The court determined that the agreement was fair and reasonable, taking into account the interests of both the employer and the employees. Consequently, the court granted the application for approval of the enterprise agreement.

The final orders of the court were that the CFMEU O&M Mobile Plant and Earthworks Enterprise Agreement 2020 be approved under section 234 of the Fair Work Act 2009, effective from the date of the judgment. This decision ensures that the terms and conditions set out in the agreement will govern the employment relationship between O&M Pty Ltd and its employees represented by the CFMEU.

O&M 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