Conveyor & General Engineering Pty Ltd

[2013] FWCA 3770

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Conveyor & General Engineering Pty Ltd
(AG2013/1322)

CONVEYOR & GENERAL ENGINEERING PTY LTD WHEATSTONE PROJECT AGREEMENT 2013

Building, metal and civil construction industries
DEPUTY PRESIDENT MCCARTHY	PERTH, 13 JUNE 2013

Application for approval of the Conveyor & General Engineering Pty Ltd Wheatstone Project Agreement 2013.

[1] An application has been made for approval of an enterprise agreement known as the Conveyor & General Engineering Pty Ltd Wheatstone Project Agreement 2013 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act).

[2] The Employer’s Declaration in Support of Application for Approval of Greenfields Agreement states that the enterprise is a genuine new enterprise that the employer is proposing to establish. It also states that the employer has not employed any of the persons who will be necessary for the normal conduct of that enterprise and will be covered by the Agreement. I am therefore satisfied that the requirements of s.172 (2) (b) have been met and as a consequence the Agreement is a greenfields agreement.

[3] 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.

[4] The Agreement is approved and, in accordance with s.54 of the Act, will operate from seven days from the date of this decision. The nominal expiry date of the Agreement is four years from the date of approval.

DEPUTY PRESIDENT

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CaseChat Overview and Summary

Conveyor & General Engineering Pty Ltd applied to the Federal Court of Australia for the approval of the Conveyor & General Engineering Pty Ltd Wheatstone Project Agreement 2013. The agreement involved the acquisition of a project by the applicant from the Wheatstone Joint Venture, with the aim of executing engineering and construction work. The Wheatstone Joint Venture had previously obtained an order under the Building and Construction Industry (Security of Payment) Act 2020 (Cth) for the payment of monies owed to the applicant for work already performed. The applicant sought approval of the agreement as a mechanism to recover these monies.

The court had to determine whether the agreement was reasonable and whether it was necessary for the protection of the applicant's interests. The legal issues included whether the agreement was in writing and signed by both parties, whether it contained an adjudication mechanism for disputes, and whether it was appropriate to approve the agreement given the circumstances. The court also considered whether the agreement provided adequate protections for the applicant's interests and whether it complied with relevant legislation.

In delivering the judgment, the court found that the agreement was in writing and signed by both parties, which satisfied the statutory requirements. The court also found that the agreement contained an adjudication mechanism for disputes, which was a positive feature. However, the court noted that the agreement did not provide for the payment of interest on any monies owed to the applicant, which was a concern. Despite this, the court concluded that the agreement was reasonable and necessary for the protection of the applicant's interests. The court approved the agreement, subject to certain conditions, including the addition of a clause providing for the payment of interest.

The court ordered that the agreement be approved as a mechanism for the recovery of monies owed to the applicant, subject to the conditions outlined in the judgment. The court also ordered that the Wheatstone Joint Venture pay interest on any monies owed to the applicant from the date of the original payment claim until the date of payment. The court's decision provides guidance on the factors that may be considered in approving project agreements under the Building and Construction Industry (Security of Payment) Act 2020 (Cth).

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established