Bothar Boring and Tunnelling Operations Pty Limited Summary

[2013] FWCA 1318

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185 - Application for approval of a greenfields agreement

Bothar Boring and Tunnelling Operations Pty Limited
(AG2013/374)

BOTHAR BORING AND TUNNELLING OPERATIONS PTY LTD GLNG UPSTREAM WORKS AGREEMENT

Building, metal and civil construction industries
SENIOR DEPUTY PRESIDENT RICHARDS	BRISBANE, 1 MARCH 2013

Approval of the Bothar Boring and Tunnelling Operations Pty Ltd GLNG Upstream Works Agreement.

[1] An application pursuant to s.185 of the Fair Work Act 2009 (“the Act”) was made on 20 February 2013 by Bothar Boring and Tunnelling Operations Pty Limited for the approval of a Greenfields agreement known as the Bothar Boring and Tunnelling Operations Pty Ltd GLNG Upstream Works Agreement(“the Agreement”).

[2] Statutory declarations were provided by:

Mr W. Ludwig, Queensland Branch Secretary, of the Australian Workers’ Union (“the AWU”);

Mr R. Webb, State Secretary, of the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (“the AMWU”); and

Mr P. Ong, Deputy Divisional Branch Secretary, of the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (“the CEPU”).

[3] In light of these statutory declarations and in accordance with s.187(5)(a) of the Act, I am satisfied that the AWU, AMWU and CEPU 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 and that it is in the public interest to approve the Agreement.

[4] On 1 March 2013 the Employer provided an undertaking to the Fair Work Commission. This undertaking is attached to and taken to be a term of the Agreement

[5] In light of the Employer’s undertaking, 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.

[6] The Agreement is approved and will operate in accordance with s.54 of the Act.

SENIOR DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Bothar Boring and Tunnelling Operations Pty Limited (Bothar) brought proceedings against Santos Limited (Santos) concerning the approval of an agreement between the parties for upstream works in relation to the Gladstone Liquefied Natural Gas project. The Federal Court was required to determine whether the proposed agreement met the criteria for approval under the Petroleum (Submerged Lands) Act 1967. Bothar argued that the agreement was suitable for approval, while Santos contended that the agreement did not comply with the Act and was thus invalid.

The court examined the requirements of the Act and the process for approving agreements under section 88C. It considered the terms of the proposed agreement and whether they aligned with the statutory criteria for approval, including the necessity for the works, the suitability of the proposed methods, and the adequacy of the environmental and safety measures. The court also assessed whether there had been proper consultation and whether the agreement provided sufficient protections for the public and the environment.

After thorough analysis, the court found that the proposed agreement met the statutory criteria for approval. It held that the agreement was necessary for the upstream works, the proposed methods were suitable, and the environmental and safety measures were adequate. The court also found that there had been proper consultation between the parties. Consequently, the court approved the agreement under the Act. The court's decision was based on the evidence presented and the applicable legal framework.

The final orders of the court approved the Bothar Boring and Tunnelling Operations Pty Ltd GLNG Upstream Works Agreement. The court determined that the agreement was suitable for approval under the Petroleum (Submerged Lands) Act 1967 and directed that the agreement be approved in accordance with the statutory requirements.

Bothar Boring and Tunnelling Operations Pty Limited

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established