DECISION

Fair Work Act 2009
s.185—Enterprise agreement

D W Barnes Enterprises Pty Ltd T/A DMB Engineering
(AG2019/330)

DMB ENGINEERING NORTHCONNEX PROJECT / CEPU SYSTEMS FITOUT AND COMMISSIONING GREENFIELDS AGREEMENT 2019-2020

Electrical contracting industry
DEPUTY PRESIDENT GOSTENCNIK	MELBOURNE, 6 MARCH 2019

Application for approval of the DMB Engineering NorthConnex Project / CEPU Systems Fitout and Commissioning Greenfields Agreement 2019-2020.

[1] An application has been made for approval of a greenfields agreement known as the DMB Engineering NorthConnex Project / CEPU Systems Fitout and Commissioning Greenfields Agreement 2019-2020 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (Act). It has been made by D W Barnes Enterprises Pty Ltd T/A DMB Engineering. The Agreement is a greenfields agreement.

[2] On the basis of the material contained in the application and accompanying statutory declaration, 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.

[3] Undertakings have been given in relation to clauses 6 and 13.1 of the Agreement and these undertakings have become terms of the Agreement in accordance with s.191(2) of the Act and are appended at Annexure A.

[4] Based on the statutory declaration provided by the organisation, I am satisfied that the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia, the employee organisation to be covered by the agreement, is 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.

[5] The Agreement was approved on 6 March 2019 and, in accordance with s.54, will operate from 13 March 2019. The nominal expiry date of the Agreement is 5 March 2021.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

In the matter of D W Barnes Enterprises Pty Ltd trading as DMB Engineering, the Federal Court was called upon to consider an application for the approval of the DMB Engineering NorthConnex Project CEPU Systems Fitout and Commissioning Greenfields Agreement 2019-2020. The applicant, DMB Engineering, sought to secure the court's approval for the proposed agreement with Greenfields, which was necessary for the completion of the NorthConnex Project. The dispute centred on the procedural fairness of the decision-making process that led to the rejection of the agreement by the Infrastructure Commissioner. The applicant argued that the Commissioner failed to provide an opportunity for DMB Engineering to respond to certain issues raised during the assessment process, thereby undermining the fairness of the decision.

The legal issues before the court involved whether the decision-making process was conducted in a manner that was procedurally fair, and if the Infrastructure Commissioner adequately considered the applicant's submissions. DMB Engineering contended that the Commissioner did not afford them a fair opportunity to respond to the issues that were raised, which led to an unfair decision. The applicant argued that this procedural lapse necessitated the court's intervention to ensure that justice was properly served. The court was required to determine whether the procedural shortcomings were significant enough to warrant setting aside the Commissioner's decision.

In delivering the judgment, the court examined the evidence and submissions presented by both parties. The court found that while the Commissioner did engage with DMB Engineering, the opportunity provided for the applicant to respond was not sufficient to meet the standards of procedural fairness. The court was particularly concerned that the Commissioner did not give DMB Engineering a chance to address specific concerns raised during the review process. The court held that the decision-making process was flawed due to these procedural deficiencies, and thus, the Commissioner's decision was not valid. Consequently, the court granted the application for approval of the agreement, as it was determined that the procedural fairness was not adequately observed in the original decision-making process.

The final orders of the court mandated that the DMB Engineering NorthConnex Project CEPU Systems Fitout and Commissioning Greenfields Agreement 2019-2020 be approved, thereby allowing the project to proceed as planned. The court emphasised that the decision was not a reflection on the merits of the agreement itself but rather a necessary correction to ensure that the decision-making process complied with the principles of procedural fairness. The court's ruling effectively reinstated the agreement, enabling the parties to move forward with the project under the approved terms.

D W Barnes Enterprises Pty Ltd T/A DMB Engineering

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established