Bechtel Construction (Australia) Pty Ltd

[2021] FWCA 7179

[2021] FWCA 7179

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Bechtel Construction (Australia) Pty Ltd
(AG2021/8738)

BECHTEL CONSTRUCTION (AUSTRALIA) PTY LTD PLUTO TRAIN 2 PROJECT AGREEMENT

Building, metal and civil construction industries
COMMISSIONER O'NEILL	MELBOURNE, 20 DECEMBER 2021

Application for approval of the Bechtel Construction (Australia) Pty Ltd Pluto Train 2 Project Agreement

[1] Bechtel Construction (Australia) Pty Ltd has applied for approval of a greenfields agreement known as the Bechtel Construction (Australia) Pty Ltd Pluto Train 2 Project Agreement (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (Act).

[2] This is a greenfields agreement that meets the requirements of section 172(2)(b) of the Act. 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. In accordance with s.187(5)(a) of the Act, I am satisfied that the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU), the Australian Workers’ Union, the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia and the Construction, Forestry, Maritime, Mining and Energy Union are entitled to represent the industrial interests of a 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.

[3] The Applicant has provided written undertakings and a copy of the undertakings is attached in Annexure A. In accordance with s.191(1) of the Act, the undertakings are taken to be a term of the Agreement.

[4] Pursuant to s.202(4) of the Act, the model flexibility term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.

[5] Pursuant to s.205(2) of the Act, the model consultation term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.

[6] I observe that the following provisions are likely to be inconsistent with the National Employment Standards (NES):

•  Clause 27(1) – Public Holidays;

•  Clause 27(2) – Substitution by Agreement;

•  Clause 33(17) – Abandonment of Employment; and

•  Clause 34(1) – Severance.

However, noting the undertakings given by the Employer, I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

[7] Pursuant to s.53(2)(b) of the Act I note the Agreement was made with the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU), the Australian Workers’ Union, the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia and the Construction, Forestry, Maritime, Mining and Energy Union and that the Agreement covers these organisations.

[8] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 27 December 2021. The nominal expiry date of the Agreement is 19 December 2025.

COMMISSIONER

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<AE514341  PR736874>

Annexure A