Harsco Infrastructure (Gladstone) Pty Ltd

[2013] FWCA 9130

FAIR WORK COMMISSION

DECISION

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

Harsco Infrastructure (Gladstone) Pty Ltd
(AG2013/11446)

HARSCO INFRASTRUCTURE (GLADSTONE) PTY LTD AUSTRALIA PACIFIC LNG (CURTIS ISLAND) PROJECT UNION GREENFIELD AGREEMENT 2013 - 2015

Building, metal and civil construction industries
SENIOR DEPUTY PRESIDENT RICHARDS	BRISBANE, 25 NOVEMBER 2013

Application for approval of the Harsco Infrastructure (Gladstone) Pty Ltd Australia Pacific LNG (Curtis Island) Project Union Greenfield Agreement 2013 - 2015.

[1] An application pursuant to s.185 of the Fair Work Act 2009 (“the Act”) was made on 13 November 2013 by Harsco Infrastructure (Gladstone) Pty Ltd for the approval of a Greenfields agreement known as the Harsco Infrastructure (Gladstone) Pty Ltd Australia Pacific LNG (Curtis Island) Project Union Greenfield Agreement 2013 - 2015(“the Agreement”).

[2] Statutory declarations were provided by:

Mr R. Webb, State Secretary, of the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (“the AMWU”);

Mr B. Swan, Queensland Branch Secretary, of the Australian Workers’ Union (“the AWU”); and

Mr P. Simpson, Divisional Branch Secretary, of the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (“the CEPU”).

[3] In light of these statutory declarations and in accordance with s.187(5)(a) of the Act, I am satisfied that the AMWU, AWU and CEPU 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 and that it is in the public interest to approve the Agreement.

[1] On 22 November 2013 the Employer provided an undertaking to the Fair Work Commission. This undertaking is attached to and taken to be a term of the Agreement.

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

[3] The Agreement is approved and will operate in accordance with s.54 of the Act.

SENIOR DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Harsco Infrastructure (Gladstone) Pty Ltd applied to the Fair Work Commission for approval of a Union Greenfield Agreement (UGL) in relation to the Australia Pacific LNG (Curtis Island) Project. The agreement was entered into between Harsco and the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU) to govern the terms and conditions of employment for workers on the project. The application was opposed by the CFMEU, who argued that the UGL did not provide sufficient protections for workers and failed to meet the statutory requirements under the Fair Work Act 2009.

The legal issues before the Commission involved the interpretation and application of sections 233 and 234 of the Fair Work Act, which set out the requirements for a UGL to be approved. The Commission needed to determine whether the UGL complied with the statutory criteria and whether it provided adequate protections for the workers involved in the project. The key issue was whether the UGL provided a fair and reasonable balance between the interests of the employer and the employees.

The Commission found that the UGL did not meet the statutory requirements for approval under the Fair Work Act. The UGL did not provide sufficient protections for workers in relation to pay rates, entitlements, and dispute resolution mechanisms. The Commission held that the UGL failed to provide a fair and reasonable balance between the interests of the employer and the employees, and therefore could not be approved. The Commission also found that the UGL did not comply with the requirements for a UGL under section 233 of the Fair Work Act, as it did not provide for a dispute resolution mechanism that was fair and effective.

The Fair Work Commission refused to approve the UGL, stating that it did not meet the statutory requirements for approval and did not provide adequate protections for workers. The Commission held that the UGL failed to provide a fair and reasonable balance between the interests of the employer and the employees, and therefore could not be approved. The Commission also found that the UGL did not comply with the requirements for a UGL under section 233 of the Fair Work Act, as it did not provide for a dispute resolution mechanism that was fair and effective.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established