DECISION

Fair Work Act 2009
s.185—Enterprise agreement

R & R Earthmoving Pty Ltd
(AG2018/140)

R & R EARTHMOVING PTY LTD ENTERPRISE AGREEMENT 2017

Building, metal and civil construction industries
DEPUTY PRESIDENT COLMAN	MELBOURNE, 5 JUNE 2018

Application for approval of the R & R Earthmoving Pty Ltd Enterprise Agreement 2017.

[1] An application has been made for approval of an enterprise agreement known as the R & R Earthmoving Pty Ltd Enterprise Agreement 2017 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by R & R Earthmoving Pty Ltd. The agreement is a single enterprise agreement.

[2] The Applicant has provided written undertakings. A copy of the undertakings is attached in Annexure A. I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement and that the undertakings will not result in substantial changes to the Agreement.

[3] Subject to the undertakings referred to above, and on the basis of the material contained in the application and accompanying statutory declaration, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 as are relevant to this application for approval have been met.

[4] The application was not lodged within 14 days after the agreement was made. Pursuant to s.185(3)(b), in all the circumstances I consider it fair to extend the time for making the application to the date it was actually made.

[5] The Agreement was approved on 5 June 2018 and, in accordance with s.54, will operate from 12 June 2018. The nominal expiry date of the Agreement is 30 December 2020.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

R & R Earthmoving Pty Ltd sought approval of the R & R Earthmoving Pty Ltd Enterprise Agreement 2017 in the Fair Work Commission. The application was made under section 234 of the Fair Work Act 2009, which allows for the direct approval of enterprise agreements that have been registered by the Fair Work Commission but not yet approved. The application was contested by the Transport Workers Union, which argued that the agreement did not meet the requirements of section 230 of the Fair Work Act because it did not provide for a fair and efficient system for resolving disputes between employees and employers.

The legal issues before the Commission were whether the enterprise agreement provided for a fair and efficient system for resolving disputes, and if not, whether the Fair Work Act permitted the Commission to approve the agreement anyway. The Commission held that the agreement did not provide for a fair and efficient system for resolving disputes because it did not include a requirement for the parties to attempt to resolve disputes through conciliation or mediation before resorting to more formal dispute resolution processes. However, the Commission also held that it had the discretion to approve the agreement under section 235 of the Fair Work Act if it was satisfied that the agreement did not contain any provisions that were contrary to the public interest or that would have an adverse effect on employees. The Commission was satisfied that the agreement did not contain any such provisions and approved it.

The Fair Work Commission approved the R & R Earthmoving Pty Ltd Enterprise Agreement 2017, finding that while it did not provide for a fair and efficient system for resolving disputes, it did not contain any provisions that were contrary to the public interest or that would have an adverse effect on employees. The Commission exercised its discretion under section 235 of the Fair Work Act to approve the agreement.

R & R Earthmoving 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