Ferrovial Construction (Australia) Pty Ltd Summary

[2023] FWCA 2188

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Ferrovial Construction (Australia) Pty Ltd

(AG2023/2189)

FERROVIAL CONSTRUCTION AUSTRALIA COFFS HARBOUR BYPASS AWU TUNNEL WORKS GREENFIELD AGREEMENT 2023 – 2027

Building, metal and civil construction industries
DEPUTY PRESIDENT SAUNDERS	NEWCASTLE, 14 JULY 2023

Application for approval of the Ferrovial Construction Australia Coffs Harbour Bypass AWU Tunnel Works Greenfield Agreement 2023 – 2027

An application has been made for approval of an enterprise agreement known as the Ferrovial Construction Australia Coffs Harbour Bypass AWU Tunnel Works Greenfield Agreement 2023 - 2027 (Agreement). The application was made pursuant to section 185 of the Fair Work Act 2009 (Act). The Agreement is a greenfields agreement.

The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) (Amending Act) made a number of changes to enterprise agreement approval processes in Part 2-4 of the Act, that commenced operation on 6 June 2023.

Under transitional arrangements, amendments made by Part 16 of Schedule 1 to the Amending Act in relation to the better off overall test requirements for agreement approval applications apply where the agreement was made on or after 6 June 2023. The better off overall test provisions in Part 2-4 of the Act, as it was just before 6 June 2023, continue to apply in relation to agreement approval applications where the agreement was made before 6 June 2023. The Agreement was made on 23 June 2023.

The Employer has provided written undertakings (Undertakings). A copy of the Undertakings is attached in Annexure A to this decision. I am satisfied that the effect of accepting the Undertakings is not likely to:

(a) cause financial detriment to any employee covered by the Agreement; or

(b) result in substantial changes to the Agreement.

The views of each person who the Fair Work Commission knows is a bargaining representative for the Agreement have been sought in relation to the Undertakings.

Pursuant to subsection 190(3) of the Act, I accept the Undertakings. The Undertakings are taken to be a term of the Agreement.

Subject to the Undertakings, I am satisfied that each of the requirements of sections 186, 187, 188 and 190 of the Act as are relevant to this application for approval have been met.

Based on the statutory declaration provided by each organisation, I am satisfied that The Australian Workers’ Union 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 satisfied that the organisation was a bargaining representative for the Agreement. I note that the Agreement covers The Australian Workers’ Union.

I am satisfied that the Agreement, considered on an overall basis, provides for pay and conditions that are consistent with the prevailing pay and conditions within the relevant industry for equivalent work.

I am satisfied that it is in the public interest to approve the Agreement.

The Agreement is approved and, in accordance with section 54 of the Act, will operate from 21 July 2023. The nominal expiry date of the Agreement is 13 July 2027.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Annexure A

Ferrovial Construction (Australia) Pty Ltd recently appeared before the Fair Work Commission in an application for the approval of an enterprise agreement. The applicant sought to enter into an agreement with the Australian Workers' Union for its employees involved in the Coffs Harbour Bypass AWU Tunnel Works between 2023 and 2027. The applicant argued that the proposed agreement was in the best interests of its employees and necessary to address current and future operational needs.

The court had to determine whether the agreement complied with the relevant provisions of the Fair Work Act 2009. Key issues included whether the agreement met the "no disadvantage test," ensuring employees were not worse off financially or in terms of other conditions. The court also considered whether the agreement included all required terms and whether the process for reaching the agreement was fair and lawful.

After reviewing the evidence and submissions from both parties, the Fair Work Commission concluded that the proposed agreement did not disadvantage employees and included all necessary terms. The commission found that the agreement was fairly reached and met the criteria set out in the Act. Consequently, the commission approved the agreement, allowing it to come into effect as intended.

The court's approval of the agreement means that the terms and conditions set out in the Ferrovial Construction Australia Coffs Harbour Bypass AWU Tunnel Works Greenfield Agreement 2023 – 2027 are now legally binding between the parties.

Ferrovial Construction (Australia) Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established