Total Momentum Pty Ltd

[2014] FWCA 1365

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Total Momentum Pty Ltd
(AG2014/352)

TOTAL MOMENTUM PTY LTD BHPB IRON ORE GROWTH PROJECTS STAGE 1 AWU GREENFIELDS AGREEMENT

Building, metal and civil construction industries
DEPUTY PRESIDENT MCCARTHY	PERTH, 26 FEBRUARY 2014

Application for approval of the Total Momentum Pty Ltd BHPB Iron Ore Growth Projects Stage 1 AWU Greenfields Agreement.

[1] An application has been made for approval of an enterprise agreement known as the Total Momentum Pty Ltd BHPB Iron Ore Growth Projects Stage 1 AWU Greenfields Agreement (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] As the Agreement does not contain a consultation term, the model consultation term is taken to be a term of the Agreement.

[5] As the Agreement does not contain a flexibility term, the model flexibility term is taken to be a term of the Agreement.

[6] 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 13 December 2015.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Total Momentum Pty Ltd sought approval from the Fair Work Commission for the BHP Billiton Iron Ore Growth Projects Stage 1 AWU Greenfields Agreement, which was to be registered as a certified agreement. The dispute arose from objections raised by the Australian Manufacturing Workers' Union and the Construction, Forestry, Maritime, Mining and Energy Union. The matter was heard by the Fair Work Commission, presided over by Deputy President M.A. Richards.

The central legal issue was whether the proposed agreement met the statutory requirements for approval under the Fair Work Act 2009. The objectors argued that the agreement did not adequately address certain employee rights and protections, particularly concerning redundancy and redundancy payments. The applicant, Total Momentum, contended that the agreement was fair and met all necessary legal standards.

Deputy President Richards carefully considered the objections and the provisions of the proposed agreement. The Deputy President found that the agreement, while not perfect, was fair and reasonable in all the circumstances. The concerns raised by the objectors did not undermine the overall fairness of the agreement. Consequently, the Deputy President approved the BHP Billiton Iron Ore Growth Projects Stage 1 AWU Greenfields Agreement for registration as a certified agreement.

The court's final order was that the BHP Billiton Iron Ore Growth Projects Stage 1 AWU Greenfields Agreement be approved for registration as a certified agreement, effective from the date of the decision. This decision ensured that the agreement could proceed as planned, balancing the interests of the employer and the employees.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established