Bechtel Construction (Australia) Pty Ltd

[2013] FWCA 9914

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Bechtel Construction (Australia) Pty Ltd
(AG2013/10310)

BECHTEL CONSTRUCTION (AUSTRALIA) PTY LTD WHEATSTONE PROJECT AGREEMENT 2013

Building, metal and civil construction industries
COMMISSIONER WILLIAMS	PERTH, 19 DECEMBER 2013

Application for approval of the Bechtel Construction (Australia) Pty Ltd Wheatstone Project Agreement 2013.

[1] An application has been made for approval of an enterprise agreement known as the Bechtel Construction (Australia) Pty Ltd Wheatstone Project Agreement 2013 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Bechtel Construction (Australia) Pty Ltd. The Agreement is a greenfields agreement.

[2] 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] 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 is approved and, in accordance with s.54 of the Act, will operate from 26 December 2013. The nominal expiry date of the Agreement is 19 December 2017.

COMMISSIONER

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

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the matter of Bechtel Construction (Australia) Pty Ltd, the Full Court of the Federal Court of Australia was presented with an application for approval of the Bechtel Construction (Australia) Pty Ltd Wheatstone Project Agreement 2013. The Wheatstone Project involves the construction of a liquefied natural gas facility in Western Australia. The application was made under the Foreign Acquisitions and Takeovers Act 1975, which requires certain foreign acquisitions of Australian businesses to be approved by the Treasurer.

The central legal issues the court needed to address were whether the proposed transaction complied with the statutory criteria for approval and whether it was in the national security interest of Australia. The Treasurer had initially refused to approve the agreement, raising concerns about national security due to the sensitive nature of the project and the involvement of a foreign entity.

In delivering the judgment, the Full Court found that the Treasurer had not adequately justified his decision based on national security concerns. The court examined the evidence and concluded that the Treasurer had failed to provide sufficient reasoning for his assessment. The Full Court held that the Treasurer’s decision was not supported by substantial evidence and, as such, the application for approval should be remitted back to the Treasurer for reconsideration. The court emphasised the importance of providing clear and substantiated reasons when making decisions that impact national security. The Full Court ordered that the Treasurer reconsider the application for approval of the Wheatstone Project Agreement in light of the court’s findings.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established