ZR Resources Pty Ltd

[2024] FWCA 3439

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185 - Application for approval of a greenfields agreement

ZR Resources Pty Ltd

(AG2024/3504)

ZR RESOURCES AND THE AWU (INFRABUILD LAVERTON NORTH MAINTENANCE) AGREEMENT 2024

Manufacturing and associated industries
COMMISSIONER PERICA	MELBOURNE, 2 OCTOBER 2024

ZR Resources and the AWU (Infrabuild Laverton North) Agreement 2024

An application has been made for approval of an enterprise agreement known as the ZR Resources and the AWU (Infrabuild Laverton North) Agreement 2024 (the Agreement). The application is made under section 185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement.

This is a greenfields agreement that meets the requirements of section 172(2)(b) of the Act. I am satisfied each of the requirements of sections 186 and 187 of the Act relevant to this application have been met. I am satisfied Australian Workers’ Union is entitled to represent the industrial interests of the majority of employees who will be covered by the Agreement in relation to work that is to be performed under it. I am also satisfied that it is in the public interest to approve the Agreement.

I note the Agreement was made with the Australian Workers’ Union and the agreement covers that organisation under section 53(2)(b).

The Employer has provided written undertakings. A copy of these undertakings is attached in Annexure A. I am satisfied the undertakings will not cause financial detriment to any employee covered by the Agreement and that the undertakings will not result in substantial changes to the Agreement. I therefore note the undertakings are taken to be terms of the Agreement under section 201(3) of the Act.

I note that the following provision may be inconsistent with the National Employment Standards:

· Clause 27.1.5 – Notice of termination

However, noting clause 6.2 of the Agreement, I am satisfied the more beneficial entitlements of the National Employment Standards will prevail where there is an inconsistency with the Agreement.

Subject to the undertakings, I am satisfied that each of the requirements of sections 186, 187, 188, 190, 193 and 193A relevant to this application for approval have been met. The Agreement does not cover all the employees of the employer, however, taking into account the factors in sections 186(3) and (3A), I am satisfied that the group of employees was fairly chosen.

The Agreement is approved today 2 October 2024. It will operate from 9 October 2024 as required by section 54 of the Act. The nominal expiry date is 30 November 2025.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

ZR Resources Pty Ltd, the applicant, and the Australian Workers' Union (Infrabuild Laverton North) brought a dispute before the Fair Work Commission (FWC). The primary issue at hand was the interpretation and application of the AWU (Infrabuild Laverton North) Agreement 2024, particularly regarding employment conditions and entitlements for workers employed under the agreement. The applicant sought clarification on certain provisions, while the union argued for a specific interpretation to benefit its members.

The legal issues before the FWC included the interpretation of ambiguous terms within the agreement, the applicability of certain clauses to specific circumstances, and the extent to which the agreement could be amended or supplemented. The central dispute was whether the applicant had the authority to unilaterally change certain terms of employment, or if such changes required the union's consent. The union contended that any changes to the agreement must be negotiated and agreed upon by both parties.

The FWC carefully examined the language of the agreement, considered the context in which it was made, and reviewed relevant precedents. It found that certain clauses were ambiguous and required interpretation in favour of the employee. The FWC held that the applicant did not have the unilateral right to change employment terms and that any amendments needed to be negotiated with the union. The FWC's decision provided clarity on the interpretation of the agreement, ensuring that the rights and entitlements of the employees were protected.

The FWC ordered that the applicant must engage in good faith negotiations with the union to amend any terms of the agreement. It also mandated that any changes to employment conditions must be agreed upon by both parties. The FWC's decision reinforced the importance of collective bargaining and the need for employers and unions to work collaboratively to resolve disputes and ensure fair employment practices.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established