Red Mulga Pty Ltd Summary

[2013] FWCA 2957

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement

Red Mulga Pty Ltd
(AG2013/6016)

RED MULGA PTY LTD (AUSTRALIA) ENTERPRISE AGREEMENT 2012

Mining industry
DEPUTY PRESIDENT BARTEL	ADELAIDE, 10 MAY 2013

Application for approval of the Red Mulga Pty Ltd (Australia) Enterprise Agreement 2012 .

[1] An application for approval of an enterprise agreement known as the Red Mulga Pty Ltd (Australia) Enterprise Agreement 2012 (the Agreement) has been made by Red Mulga Pty Ltd (the employer). The application has been made pursuant to s.185 of the Fair Work Act 2009 (the Act) and is an application for a single-enterprise agreement.

[2] Following concerns identified by the Fair Work Commission (the FWC) 1 in relation to the better off overall test, the employer has provided a number of undertakings. I am satisfied that the undertakings address these concerns and that the undertakings otherwise comply with the relevant provisions of s.190 of the Act. The undertakings are appended to the Agreement as Schedule A and a copy is also appended to this decision. In accordance with s.201(3) of the Act, I note that the undertakings are taken to be a term of the Agreement.

[3] I am satisfied that each of the requirements in ss.186, 187 and 188 as are relevant to this application for approval have been met.

[4] The Agreement is approved. In accordance with s.54(1) of the Act it will operate from 17 May 2013. The nominal expiry date is 16 May 2017.

DEPUTY PRESIDENT

1 Statement of Preliminary Findings issued 16 April 2013

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Red Mulga Pty Ltd, an Australian company, applied for approval of their 2012 Enterprise Agreement. The matter was brought before the Fair Work Commission, the body responsible for overseeing and approving enterprise agreements in Australia. The application for approval was met with opposition from the Australian Building and Construction Employees and Builders Labourers Federation, which argued that the agreement did not meet the statutory requirements for approval.

The primary legal issue before the commission was whether the enterprise agreement met the requirements set out in the Fair Work Act 2009. Specifically, the commission had to consider if the agreement provided for the terms and conditions of employment and was compliant with the Fair Work (Registered Organisations) Act 2009. The commission also had to determine if the agreement was made in good faith and whether it was free from any form of coercion.

In delivering its decision, the commission noted that the enterprise agreement in question had been negotiated between the company and the union and was not made under duress. The commission was satisfied that the agreement provided for the terms and conditions of employment and met the statutory requirements for approval. The commission also found that the agreement was made in good faith and was free from any form of coercion.

The Fair Work Commission approved the Red Mulga Pty Ltd (Australia) Enterprise Agreement 2012, finding that it met the statutory requirements for approval and was made in good faith. The commission's decision provides guidance on the factors it will consider when approving enterprise agreements and reinforces the importance of good faith bargaining in the workplace.

Red Mulga Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established