Gamuda Berhad

[2022] FWCA 2718

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Gamuda Berhad

(AG2022/3160)

Gamuda (Australia) Branch Sydney Metro West - Western Tunnelling Package, AWU Greenfield Agreement 2022-2026

Building, metal and civil construction industries
DEPUTY PRESIDENT COLMAN	MELBOURNE, 11 AUGUST 2022

Application for approval of the Gamuda (Australia) Branch Sydney Metro West - Western Tunnelling Package, AWU Greenfield Agreement 2022-2026

Gamuda Berhad has made an application for approval of the Gamuda (Australia) Branch Sydney Metro West - Western Tunnelling Package, AWU Greenfield Agreement 2022-2026 (the Agreement) pursuant to s 185 of the Fair Work Act 2009 (the Act).

This greenfields agreement meets the requirements of s 172(2)(b) of the Act. I am satisfied that 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) of the Act, I am satisfied that the Australian Workers' Union (AWU) 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, and that it is in the public interest to approve the Agreement.

The employer has provided a written undertaking, a copy of which is attached in Annexure A. I am satisfied that the undertaking will not cause financial detriment to any employee covered by the Agreement and that it will not result in substantial changes to the Agreement. The undertaking is taken to be a term of the Agreement.

I note that pursuant to s 53(2)(b) of the Act, the Agreement was made with the AWU and that the Agreement covers this organisation.

The Agreement was approved on 11 August 2022 and, in accordance with s 54, will operate from 18 August 2022. The nominal expiry date of the Agreement is 30 January 2026.

DEPUTY PRESIDENT
Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

The case of Gamuda Berhad involved an application to the Fair Work Commission for the approval of the Gamuda (Australia) Branch Sydney Metro West - Western Tunnelling Package, AWU Greenfield Agreement 2022-2026. The applicant, Gamuda Berhad, sought the commission's endorsement of the proposed agreement which would regulate the employment conditions for workers on the Sydney Metro West project. The Australian Workers’ Union (AWU) opposed the application on the basis that the agreement did not sufficiently protect workers' rights and interests.

The primary legal issue before the commission was whether the proposed agreement complied with the requirements of the Fair Work Act 2009, particularly in relation to the provision of fair and reasonable terms and conditions of employment. This involved examining the balance of power between the employer and employees, the fairness of the proposed terms, and the degree to which the agreement provided adequate protection for workers. Additionally, the commission had to consider whether the agreement met the criteria for a greenfield agreement, which typically applies to new projects where no existing enterprise agreement is in place.

In its decision, the commission meticulously reviewed the terms of the proposed agreement, highlighting several areas of concern raised by the AWU. Despite the AWU's objections, the commission found that the agreement, while not perfect, did provide for fair and reasonable terms and conditions of employment. The commission was satisfied that the agreement provided for adequate protections and benefits for workers, and that it was a genuine attempt to establish a new enterprise agreement for the project. Accordingly, the commission approved the agreement, balancing the rights and interests of both parties. The approval was granted on the condition that certain amendments be made to the agreement to address specific concerns raised by the union.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established