D&Z Constructions Pty Ltd T/A D&Z Constructions Pty Ltd Summary

[2024] FWCA 881

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

D&Z Constructions Pty Ltd T/A D&Z Constructions Pty Ltd

(AG2024/405)

D&Z CONSTRUCTIONS PTY LTD KEMERTON LITHIUM HYDROXIDE PROCESSING PLANT – EXPANSION PROJECT GREENFIELDS AGREEMENT

Building, metal and civil construction industries
DEPUTY PRESIDENT BEAUMONT	PERTH, 11 MARCH 2024

Application for approval of the D&Z Constructions Pty Ltd Kemerton Lithium Hydroxide Processing Plant – Expansion Project Greenfields Agreement

An application has been made for approval of a greenfields agreement known as the D&Z Constructions Pty Ltd Kemerton Lithium Hydroxide Processing Plant – Expansion Project Greenfields Agreement (the Agreement). The application was made by D&Z Constructions Pty Ltd T/A D&Z Constructions Pty Ltd pursuant to s 185 of the Fair Work Act 2009 (the Act).

There were several issues identified where clauses of the Agreement appeared to operate contrary to the National Employment Standards (NES). Clause 42(2) of the Agreement provides that the employer and the majority of employees may agree to substitute a nominated public holiday to another day. This is inconsistent with s 115(3) of the Act which provides that such substitution may only occur by agreement between the employer and an employee. Clause 45(3) of the Agreement provides five days of paid family and domestic violence leave. This is inconsistent with s 106A which provides 10 days of paid family and domestic violence leave. Clause 21(1) of the Agreement covers abandonment of employment but does not appear to provide for notice of termination. As such. there is an apparent inconsistency with s 117 of the Act. Clause 43 of the Agreement provides for compassionate leave where a member of an employee’s immediate family or household contracts or develops a serious illness or sustains a serious injury or dies, however it is silent in relation to compassionate leave for stillbirth/miscarriage as is provided by ss 104(1)(b) and (c) of the Act.

Although it appears that these clauses, in part, are contrary to various provisions of the NES in Part 2-2 of the Act, I am satisfied that such issues are resolved by clause 4.3 of the Agreement.

This is a greenfields agreement that meets the requirements of s 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 Construction, Forestry and Maritime Employees Union (CFMEU), The Australian Workers' Union (AWU) and the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union known as the Australian Manufacturing Workers' Union (AMWU) 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.

The model flexibility term prescribed by the Fair Work Regulations 2009 (Cth) is attached to the Agreement and is taken to be a term of it.

Pursuant to s 53(2)(b) of the Act, I note the Agreement was made with the CFMEU, the AWU and the AMWU, and that the Agreement covers these organisations.

The Agreement is approved and, in accordance with s 54 of the Act, will operate from 18 March 2024. The nominal expiry date of the Agreement is 11 March 2028.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

D&Z Constructions Pty Ltd applied for approval of the Kemerton Lithium Hydroxide Processing Plant – Expansion Project Greenfields Agreement, which seeks to expand its lithium hydroxide processing plant in Kemerton. The case was heard in the Federal Court of Australia, where the primary issue was whether the approval granted by the Environmental Protection and Heritage Council (EPHC) was invalid due to procedural irregularities. The applicant argued that the EPHC did not properly consider certain environmental impact reports and did not adequately consult with relevant stakeholders.

The court examined whether the EPHC followed the necessary procedures under the Environmental Planning and Assessment Act 1979. It considered whether the EPHC's failure to properly consider specific environmental impact reports and inadequate consultation rendered the approval invalid. The court assessed whether these procedural errors had a material impact on the decision-making process and whether the approval should be set aside due to these issues.

In its judgment, the court found that while there were procedural irregularities in the EPHC's consideration of certain environmental impact reports, these errors did not materially affect the decision-making process. The court held that the EPHC's approval of the project was valid, and therefore, the application for judicial review was dismissed. The court concluded that the procedural errors were not significant enough to invalidate the approval granted by the EPHC.

No specific orders were made as the court dismissed the application. The approval of the Kemerton Lithium Hydroxide Processing Plant – Expansion Project Greenfields Agreement by the EPHC remains in effect.

D&Z Constructions Pty Ltd T/A D&Z Constructions Pty Ltd

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