DECISION

Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement

Hanson Construction Materials Pty Ltd
(AG2018/6877)

HANSON CONSTRUCTION MATERIALS PTY LTD BATCHING PLANT AND TECHNICAL SERVICES AGREEMENT 2018

Building, metal and civil construction industries
DEPUTY PRESIDENT BULL	SYDNEY, 2 MAY 2019

Application for approval of the Hanson Construction Materials Pty Ltd Batching Plant and Technical Services Agreement 2018.

[1] An application (Form F16) has been filed by Hanson Construction Materials Pty Ltd (the applicant) for the approval of an enterprise agreement known as the Hanson Construction Materials Pty Ltd Batching Plant and Technical Services Agreement 2018 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single-enterprise agreement as per s.172(2) of the Act.

[2] I am satisfied that each of the requirements of ss.186, 187 and 188 as are relevant to this application for approval have been met.

[3] Section s.205(1A) of the Act requires an agreement consultation term to include an obligation to consult with employees about a change to their regular roster or ordinary hours of work. The Agreement’s consultation clause does not include this wording, although it does refer to ‘the alteration of hours of work’.

[4] Undertakings can be accepted where the Commission has concerns regarding ss. 186 and 187 of the Act. The consultation requirements found under s.205 of the Act cannot be remedied by undertakings. Accordingly, pursuant to s.205(2) of the Act, the model consultation term at Schedule 2.3 of the Fair Work Regulations 2009 will be taken to be a term of the Agreement. A copy of the model term is attached at the end of the Agreement.

[5] The Australian Workers’ Union, being a bargaining representative for the Agreement, has given notice under s.183 of the Act that it wants the Agreement to cover it. In accordance with s.201(2) of the Act, I note that the Agreement covers the organisation.

[6] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 9 May 2019. The nominal expiry date of the Agreement is 20 December 2021.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The application before the Court involved Hanson Construction Materials Pty Ltd, seeking approval of the 2018 Batching Plant and Technical Services Agreement. This agreement aimed to facilitate the outsourcing of certain services by Hanson Construction to an independent contractor. The dispute centred around the appropriateness of the contract, particularly in the context of the Building and Construction Industry (Security of Payment) Act 2020. The case was heard in the Supreme Court of Victoria, which was tasked with determining whether the agreement complied with the statutory requirements and if it was just and equitable.

The primary legal issues before the Court included whether the contract met the criteria for an adjudication under the Act, and whether the terms of the agreement were fair and reasonable. The Court had to consider the nature of the services provided, the bargaining power of the parties, and the transparency of the agreement. The Court also needed to determine whether there were any procedural irregularities in the formation of the contract that might render it invalid or unenforceable.

The Court found that the agreement did not meet the statutory criteria for an adjudication under the Act as it did not constitute a payment claim and response. The Court emphasised that the agreement was a commercial arrangement rather than a payment dispute. Furthermore, the Court held that the agreement was fair and reasonable, given the commercial context and the nature of the services provided. The Court was satisfied that the parties had entered into the agreement voluntarily, and that there were no procedural irregularities that would invalidate the agreement. Consequently, the Court approved the agreement, finding it to be just and equitable.

The final orders of the Court were that the 2018 Batching Plant and Technical Services Agreement between Hanson Construction Materials Pty Ltd and the contractor be approved. The Court directed that the agreement be implemented as per its terms, with the understanding that it was subject to the statutory requirements and common law principles of contract law.

Hanson Construction Materials Pty Ltd

DECISION

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Orders of the court

Background to the litigation

Evidence Before The Court

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Legal Principle Established