Pentacon Pty Ltd

[2016] FWCA 195

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Pentacon Pty Ltd

(AG2015/7706)

PENTACON LNG PROJECTS UNION GREENFIELD AGREEMENT

(2015)

Building, metal and civil construction industries

COMMISSIONER GREGORY

MELBOURNE, 13 JANUARY 2016

Application for approval of the Pentacon LNG Projects Union Greenfield Agreement (2015).

[1] An application has been made for approval of a greenfields agreement known as the

Pentacon LNG Projects Union Greenfield Agreement (2015) (Agreement). The application

was made by Pentacon Pty Ltd pursuant to s.185 of the Fair Work Act 2009 (Act).

[2] This is a greenfields agreement that meets the requirements of section 172(2)(b) of the

Act. 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. In accordance with s.187(5)(a) of the Act, I am

satisfied that the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries

Union” known as the Australian Manufacturing Workers’ Union (AMWU), The Australian

Workers’ Union and Communications, Electrical, Electronic, Energy, Information, Postal,

Plumbing and Allied Services Union of Australia are entitled to represent the industrial

interests of a majority of employees who will be covered by the Agreement in relation to

work that is to be performed under it. I am also satisfied that it is in the public interest to

approve the Agreement.

[3] An undertaking has been given in relation to clause 8.2 of the Agreement and this

undertaking has become a term of the Agreement in accordance with s.191(2) of the Act and

is appended at Appendix A.

[4] Pursuant to s.53(2)(b) of the Act I note the Agreement was made with the

“Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as

the Australian Manufacturing Workers’ Union (AMWU), The Australian Workers’ Union and

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied

Services Union of Australia and that the Agreement covers these organisations.
[2016] FWCA 195

[5] The Agreement is approved and, in accordance with s.54 of the Act, will operate from

20 January 2016. The nominal expiry date of the Agreement is 12 January 2019.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

[2016] FWCA 195

Appendix A

CaseChat Overview and Summary

The matter before Commissioner Gregory involved an application by Pentacon Pty Ltd for the approval of a greenfield enterprise agreement, the Pentacon LNG Projects Union Greenfield Agreement (2015). This agreement was submitted under section 185 of the Fair Work Act 2009, with a view to establishing terms and conditions of employment for workers involved in the Pentacon LNG projects. The application was made to the Fair Work Commission, which has the authority to approve such agreements.

The primary legal issues addressed by the Commissioner involved whether the agreement met the statutory requirements for approval under the Fair Work Act, including compliance with sections 185, 186, and 187 of the Act. The Commissioner also needed to determine whether the unions involved, namely the Australian Manufacturing Workers’ Union, The Australian Workers’ Union, and Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia, were entitled to represent the employees under the agreement, and whether it was in the public interest to approve the agreement. Furthermore, the Commissioner considered an undertaking provided in relation to clause 8.2 of the agreement, which was made a term of the agreement under section 191(2) of the Act.

Upon reviewing the application and the associated documentation, Commissioner Gregory found that the agreement satisfied all necessary criteria for approval. The Commissioner confirmed that the agreement was a genuine greenfields agreement, complying with section 172(2)(b) of the Fair Work Act. The unions were deemed to represent a majority of the employees, and the agreement was deemed to be in the public interest. An undertaking concerning clause 8.2 was incorporated into the agreement. The Commissioner approved the agreement, which was set to commence on 20 January 2016, with a nominal expiry date of 12 January 2019.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established