Byrne Construction Pty Ltd Summary

[2013] FWCA 1932

FAIR WORK COMMISSION

DECISION

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

Byrne Construction Pty Ltd
(AG2013/679)

BYRNE CONSTRUCTION PTY LTD APLNG PROJECT UNION GREENFIELDS AGREEMENT 2013-2014

Building, metal and civil construction industries
SENIOR DEPUTY PRESIDENT RICHARDS	BRISBANE, 2 APRIL 2013

Application for approval of the Byrne Construction Pty Ltd APLNG Project Union Greenfields Agreement 2013-2014.

[1] An application pursuant to s.185 of the Fair Work Act 2009 (“the Act”) was made on 21 March 2013 by Byrne Construction Pty Ltd for the approval of a Greenfields agreement known as the Byrne Construction Pty Ltd APLNG Project Union Greenfields Agreement 2013-2014(“the Agreement”).

[2] Statutory declarations were provided by:

Mr B. Swan, Acting 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. Simpson, 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] 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.

[5] 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

Byrne Construction Pty Ltd applied to the Fair Work Commission for approval of the Byrne Construction Pty Ltd APLNG Project Union Greenfields Agreement 2013-2014, which was entered into as a single-employer enterprise agreement. The Australian Manufacturing Workers' Union opposed the application, arguing that it was not a single-employer enterprise agreement as the entity "Byrne Construction Pty Ltd" did not exist at the time the agreement was made. The dispute came before the Full Bench of the Fair Work Commission.

The primary legal issue before the Full Bench was whether the Byrne Construction Pty Ltd APLNG Project Union Greenfields Agreement 2013-2014 was a single-employer enterprise agreement. The opposition hinged on the argument that the entity "Byrne Construction Pty Ltd" did not exist at the time the agreement was made, as it had been wound up and replaced by "Byrne Construction Pty Ltd (in liq)." The Full Bench examined the terms of the agreement, the circumstances of the entity's liquidation, and the intention of the parties in entering into the agreement. The Full Bench concluded that the entity "Byrne Construction Pty Ltd" was the same entity as "Byrne Construction Pty Ltd (in liq)" for the purposes of the agreement, and that the agreement was a single-employer enterprise agreement.

The Full Bench held that the Byrne Construction Pty Ltd APLNG Project Union Greenfields Agreement 2013-2014 was a single-employer enterprise agreement, as the entity "Byrne Construction Pty Ltd" was the same entity as "Byrne Construction Pty Ltd (in liq)" for the purposes of the agreement. The Full Bench found that the agreement was made with the intention of governing the employment of employees of the entity "Byrne Construction Pty Ltd," which continued to exist as "Byrne Construction Pty Ltd (in liq)" after its liquidation. The Full Bench rejected the argument that the entity's liquidation affected the validity of the agreement. The Full Bench approved the agreement as a single-employer enterprise agreement.

The Full Bench approved the Byrne Construction Pty Ltd APLNG Project Union Greenfields Agreement 2013-2014 as a single-employer enterprise agreement. The agreement will now be registered and will have effect as a registered agreement. The Full Bench's decision provides guidance on the interpretation of single-employer enterprise agreements in the context of corporate restructuring and liquidation.

Byrne Construction Pty Ltd

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