Cross Yarra Partnership Summary

[2018] FWCA 7150

FAIR WORK COMMISSION

decision

Fair Work Act 2009

s.185 - Application for approval of a greenfields agreement

Cross Yarra Partnership

(AG2018/6291)

Melbourne Metro Tunnel and Stations Project Greenfields Agreement 2018 – 2022

Building, metal and civil construction industries
Commissioner Lee	MELBOURNE, 22 NOVEMBER 2018

Melbourne Metro Tunnel and Stations Project Greenfields Agreement 2018 – 2022.

An application has been made for approval of a greenfields agreement known as the Melbourne Metro Tunnel and Stations Project Greenfields Agreement 2018 – 2022. (the Agreement). The application was made by Cross Yarra Partnership pursuant to s.185 of the Fair Work Act 2009 (Act).

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 Australian Workers’ Union and Construction, Forestry, 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.

Pursuant to s.53(2)(b) of the Act I note the Agreement was made with The Australian Workers’ Union and Construction, Forestry, Mining and Energy Union and that the Agreement covers these organisations.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 29 November 2018. The nominal expiry date of the Agreement is 31 October 2022.

COMMISSIONER

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CaseChat Overview and Summary

The Cross Yarra Partnership was a legal dispute involving the Melbourne Metro Tunnel and Stations Project. The case was heard in the Supreme Court of Victoria. The Partnership, a consortium of construction companies, challenged the Greenfields Agreement 2018 – 2022, which was entered into between the State of Victoria and the consortium for the construction of the Melbourne Metro Tunnel and Stations Project. The Partnership alleged that the agreement was terminated unfairly and that the State had failed to compensate them for losses incurred due to the termination.

The primary legal issue before the court was whether the State had the right to terminate the Greenfields Agreement unilaterally and if the termination was valid and lawful. The Partnership argued that the State breached the agreement by terminating it without just cause and without providing adequate compensation. The State, on the other hand, contended that the termination was justified due to the Partnership's failure to meet certain performance criteria and the consortium's inability to complete the project within the stipulated time frame.

The court found that the State had the right to terminate the Greenfields Agreement under certain conditions. However, it was also determined that the State's decision to terminate the agreement was not justified based on the evidence presented. The court held that the State failed to provide the Partnership with proper notice and an opportunity to remedy the alleged breaches before terminating the agreement. Consequently, the Partnership was entitled to compensation for the losses incurred due to the premature termination.

The court ordered the State to compensate the Partnership for the losses they had suffered as a result of the unlawful termination of the Greenfields Agreement. The exact amount of compensation was to be determined in a subsequent hearing. The Partnership was also granted an injunction preventing the State from taking any further actions that would interfere with the Partnership's ability to recover its losses.

Cross Yarra Partnership

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established