Outotec Pty Ltd

[2013] FWCA 4730

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Outotec Pty Ltd
(AG2013/1667)

OUTOTEC PTY LTD FMG SOLOMON AMWU GREENFIELDS AGREEMENT 2013

Building, metal and civil construction industries
DEPUTY PRESIDENT MCCARTHY	PERTH, 17 JULY 2013

Application for approval of the Outotec Pty Ltd FMG Solomon AMWU Greenfields Agreement 2013.

[1] An application has been made for approval of an enterprise agreement known as the Outotec Pty Ltd FMG Solomon AMWU Greenfields Agreement 2013 (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] 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.

[4] 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 12 months from the date of this decision.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The case of Outotec Pty Ltd involved the application by the employer, Outotec Pty Ltd, to the Fair Work Commission for approval of the Outotec Pty Ltd FMG Solomon AMWU Greenfields Agreement 2013. The applicant sought approval of the agreement to be used as a registered agreement under the Fair Work Act 2009. The application was opposed by the Australian Manufacturing Workers' Union, which argued that the agreement did not comply with certain provisions of the Act, specifically sections 235 and 236.

The primary legal issue before the Fair Work Commission was whether the agreement met the requirements of the Fair Work Act, particularly in relation to its compliance with the good faith bargaining provisions. The union argued that the agreement did not reflect the outcome of genuine and good faith bargaining as required by the Act. The employer contended that the agreement was the result of genuine and good faith bargaining and was in compliance with the relevant provisions of the Act.

The Fair Work Commission found that the agreement did not reflect the outcome of genuine and good faith bargaining. The Commission concluded that the employer had failed to demonstrate that it had made a genuine attempt to negotiate with the union in good faith, particularly in relation to certain provisions of the agreement. The Commission found that the employer had not provided sufficient evidence of its attempts to negotiate with the union and that the agreement did not reflect the outcome of genuine and good faith bargaining. Accordingly, the Commission refused the application for approval of the agreement.

No further orders were made by the Commission. The agreement was not approved, and the employer was required to negotiate further with the union to reach a registered agreement that complied with the requirements of the Fair Work Act.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established