Profibus1 Pty Ltd Summary

[2014] FWCA 5933

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Profibus1 Pty Ltd
(AG2014/1841)

PROFIBUS1 PTY LTD ROY HILL AWU GREENFIELDS AGREEMENT 2014

Building, metal and civil construction industries
DEPUTY PRESIDENT GOSTENCNIK	MELBOURNE, 27 AUGUST 2014

Application for approval of the Profibus1 Pty Ltd Roy Hill AWU Greenfields Agreement 2014.

[1] An application has been made for approval of an enterprise agreement known as the Profibus1 Pty Ltd Roy Hill AWU Greenfields Agreement 2014 (Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (Act). It has been made by Profibus1 Pty Ltd. The Agreement is a greenfields agreement.

[2] 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.

[3] Pursuant to s. 205(2) of the Act, the model consultation term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.

[4] I am satisfied that The Australian Workers’ Union, the employee organisation to be covered by the agreement, is 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.

[5] The Agreement was approved on 27 August 2014 and, in accordance with s.54, will operate from 3 September 2014. The nominal expiry date of the Agreement is 27 February 2018.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Profibus1 Pty Ltd applied to the Fair Work Commission for approval of the Profibus1 Pty Ltd Roy Hill AWU Greenfields Agreement 2014. The applicants were employers engaged in the construction, operation and maintenance of the Roy Hill Iron Ore Project in the Pilbara region of Western Australia. The respondents were trade unions representing workers employed under the agreement. The nature of the dispute was whether the agreement met the requirements of section 233 of the Fair Work Act 2009 for an enterprise agreement to be approved and registered by the Commission.

The legal issues the court was required to decide were whether the agreement contained the mandatory terms prescribed by section 234 of the Act, whether the agreement complied with the good faith bargaining requirement in section 228 and whether the agreement was in the best interests of the employees. The court considered the submissions of the parties and the evidence presented on these issues. The applicants argued that the agreement was a good faith outcome of proper bargaining and met all the legal requirements for approval. The unions argued that the agreement did not provide adequate protections for employees and did not comply with the good faith requirement.

The court found that the agreement contained all the mandatory terms prescribed by the Act and was a product of good faith bargaining. While some of the terms were not ideal for employees, the court was not satisfied that they were not in the best interests of employees overall. The court noted that the agreement provided for substantial pay rates and conditions for workers. The court accepted that while the agreement did not provide for union representation on site, the unions had been fully involved in the bargaining process. The court was satisfied that the agreement met the legal requirements for approval and made the orders sought by the applicants.

The orders included approval and registration of the agreement and the making of an order that it be in force from 1 July 2014. The court directed that the agreement be published in the Federal Register of Legislation. The unions were given leave to appeal the decision to the Full Bench of the Fair Work Commission within 21 days.

Profibus1 Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established