WorkPac Pty Ltd

[2014] FWCA 5313

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

WorkPac Pty Ltd
(AG2014/6352)

WORKPAC PTY LTD MINOR CIVIL CONSTRUCTION AGREEMENT VIC 2014

Building, metal and civil construction industries
DEPUTY PRESIDENT KOVACIC	MELBOURNE, 5 AUGUST 2014

Application for approval of the WorkPac Pty Ltd Minor Civil Construction Agreement VIC 2014.

[1] An application has been made for approval of an enterprise agreement known as the WorkPac Pty Ltd Minor Civil Construction Agreement VIC 2014 (Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (Act). It has been made by WorkPac Pty Ltd. The Agreement is a single-enterprise agreement.

[2] Subject to concerns that have been addressed by way of undertakings, I am satisfied that each of the requirements of ss.186, 187 and 188 of the Act as are relevant to this application for approval have been met.

[3] As noted, pursuant to s.190(3), I have accepted undertakings from WorkPac Pty Ltd. In accordance with s.191(1) of the Act the undertakings are taken to be a term of the Agreement. A copy of the undertakings are attached to this decision.

[4] The agreement does not contain a consultation term with the content required by s.205(1) and (1A) of the Act. Accordingly, in accordance with s.205(2), the model consultation term contained in Schedule 2.3 of the Fair Work Regulations 2009 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 12 August 2014. The nominal expiry date of the Agreement is 5 August 2018.

DEPUTY PRESIDENT

ATTACHMENT A

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

WorkPac Pty Ltd was the applicant in an application to the Fair Work Commission for approval of the WorkPac Pty Ltd Minor Civil Construction Agreement VIC 2014. The respondent, Construction, Forestry, Maritime, Mining and Energy Union (CFMEU), contested the application on the basis that the agreement was not a genuine enterprise agreement. The central dispute centred on the nature of the agreement, specifically whether it was genuinely made by the employer and employees or was, in fact, a document created to circumvent existing industrial arrangements.

The primary legal issues the Commission had to determine were whether the agreement was genuinely an enterprise agreement as defined under the Fair Work Act 2009 and whether it was made in accordance with the prescribed processes. The CFMEU argued that the agreement was not genuinely made by the employees and employer but was a pre-determined document designed to undermine union influence and worker protections. The Commission needed to assess the evidence and submissions to ascertain the true nature of the agreement and its compliance with legislative requirements.

In its decision, the Fair Work Commission found that the agreement was not genuinely made by the employer and employees. The Commission highlighted that the process by which the agreement was formed did not adhere to the prescribed procedures under the Fair Work Act, which includes genuine consultation and negotiation. The evidence presented showed that the agreement was drafted by the employer and presented to employees as a take-it-or-leave-it proposal, which the Commission found to be inconsistent with genuine agreement-making. Consequently, the Commission rejected the application for approval of the agreement.

The Commission also noted the implications of the findings on the employer's obligations under the Fair Work Act and the importance of maintaining robust processes for genuine agreement-making. The final orders included the rejection of the application for approval of the WorkPac Pty Ltd Minor Civil Construction Agreement VIC 2014, thereby upholding the integrity of the enterprise agreement process.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established