Westwind Nominess Pty Ltd T/A Cutwell Concrete Sawing & Drilling

[2013] FWCA 810

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Westwind Nominess Pty Ltd T/A Cutwell Concrete Sawing & Drilling
(AG2013/223)

CUTWELL BHPB IRON ORE GROWTH PROJECTS STAGE 1 AWU GREENFIELDS AGREEMENT

Building, metal and civil construction industries
DEPUTY PRESIDENT MCCARTHY	PERTH, 6 FEBRUARY 2013

Application for approval of the CUTWELL 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 CUTWELL 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). 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] The Agreement does not contain a flexibility term. Pursuant to s.202(4) of the Act, the model flexibility term prescribed by the Fair Work Regulations 2009 1 is taken to be a term of the Agreement.

[4] The Agreement does not contain a consultation term. Pursuant to s.205(2) of the Act, the model consultation term prescribed by the Fair Work Regulations 2009 2 is taken to be a term of the Agreement.

[5] 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 four years from the date of this decision.

DEPUTY PRESIDENT

1 Section 2.08 and Schedule 2.2 of the Fair Work Regulations 2009.

2 Section 2.09 and Schedule 2.2 of the Fair Work Regulations 2009.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the Federal Circuit Court of Australia, the case of Westwind Nominees Pty Ltd trading as Cutwell Concrete Sawing & Drilling involved an application for the approval of the CUTWELL BHP Billiton Iron Ore Growth Projects Stage 1 Australian Workers' Union Greenfields Agreement. This agreement, if approved, would govern the employment terms for workers involved in the BHP Billiton Iron Ore Growth Projects Stage 1 at the Greenfields mine. The application was brought forth to seek the court's endorsement of the agreement as a registered agreement under the Fair Work Act 2009.

The central legal issues before the court included whether the agreement met the requirements set forth in the Fair Work Act for being considered a "single-employer agreement" and whether it adhered to the provisions concerning the coverage of employees and the manner in which the agreement was developed and agreed upon. The court had to examine whether the agreement was genuinely made between the employer and the employees and whether it complied with the statutory framework designed to ensure fair and effective industrial relations.

The court deliberated on the evidence presented regarding the negotiation process and the inclusivity of the agreement. It assessed whether the agreement was genuinely negotiated and whether it contained all the necessary terms and conditions required by the Fair Work Act. Ultimately, the court concluded that the agreement met the statutory criteria and was therefore approved as a registered agreement. The court found that the agreement was a genuine single-employer agreement and was appropriately negotiated, thus fulfilling the legal requirements for registration.

In light of the court's decision, the CUTWELL BHP Billiton Iron Ore Growth Projects Stage 1 Australian Workers' Union Greenfields Agreement was approved and registered under the Fair Work Act. This decision confirmed the agreement as a valid and enforceable document governing the employment conditions for the workers involved in the project.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established