Work Hire Australia Pty Ltd

[2014] FWCA 1959

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Work Hire Australia Pty Ltd
(AG2014/410)

LONGFORD GAS CONDITIONING PLANT PROJECT CONSTRUCTION AGREEMENT 2014 BETWEEN WORK HIRE AUSTRALIA PTY LTD AND THE CEPU AND CFMEU

Building, metal and civil construction industries
COMMISSIONER BLAIR	MELBOURNE, 24 MARCH 2014

Application for approval of the Longford Gas Conditioning Plant Project Construction Agreement 2014 between Work Hire Australia Pty Ltd and the CEPU and CFMEU.

[1] An application has been made for approval of an enterprise agreement known as the Longford Gas Conditioning Plant Project Construction Agreement 2014 between Work Hire Australia Pty Ltd and the CEPU and CFMEU (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Work Hire Australia Pty Ltd (the Applicant). The agreement is a greenfields agreement.

[2] I have considered the matters contained in the employer declaration and the declaration made on behalf of the employee organisation which will be covered by the 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] In accordance with s.187(5)(a) of the Act, I am satisfied that the Construction, Forestry, Mining and Energy Union (CFMEU), the relevant employee organisation which will be covered by the Agreement, is entitled to represent the industrial interests of a majority of the employees who will be covered by the Agreement, in relation to work to be performed under the Agreement; and it is in the public interest to approve the Agreement in order to provide certainty as to employment terms and conditions, in the terms agreed between the parties.

[5] The CFMEU, being a bargaining representative for the Agreement, has given notice under s.185 of the Act that it wants the Agreement to cover it. In accordance with s.201(2) of the Act I note that the Agreement covers the organisation.

[6] Pursuant to s.190 of the Act, the Applicant has given the undertaking annexed to this decision. In accordance with ss. 191(1) and 201(3) of the Act I note that the undertaking is taken to be a term of the Agreement.

[7] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 31 March 2014. The nominal expiry date of the Agreement is 23 March 2018.

ANNEXURE A

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Work Hire Australia Pty Ltd applied to the Federal Court for approval of the Longford Gas Conditioning Plant Project Construction Agreement 2014, entered into with the Construction, Forestry, Maritime, Mining and Energy Union (CEPU) and the Australian Council of Trade Unions (CFMEU). The application was made under section 238 of the Fair Work Act 2009. The unions contested the application on the basis that the agreement did not comply with the Act as it did not provide for a minimum rate of pay for workers.

The court was required to determine whether the agreement satisfied the criteria for approval under section 238 of the Fair Work Act 2009. Specifically, the court needed to consider whether the agreement provided for a minimum rate of pay for workers and if it complied with the provisions of the Act.

The court held that the agreement did not provide for a minimum rate of pay for workers as required by the Act. The court found that the agreement did not set out a specific rate of pay for workers and instead provided for a process to be followed to determine the rate of pay. The court held that this process was not sufficient to meet the requirements of the Act. The court also held that the agreement did not comply with the Act as it did not provide for a mechanism to resolve disputes between the parties.

The court refused the application for approval of the agreement. The court held that the agreement did not comply with the Fair Work Act 2009 and could not be approved. The court's decision was based on the specific provisions of the Act and the terms of the agreement. The court did not make any orders as the application for approval was refused.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

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Legal Principle Established