Harsco Infrastructure (Gladstone) Pty Ltd

[2013] FWCA 1046

FAIR WORK COMMISSION

DECISION

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

Harsco Infrastructure (Gladstone) Pty Ltd
(AG2013/4845)

HARSCO INFRASTRUCTURE CAVAL RIDGE PROJECT UNION GREENFIELDS AGREEMENT

Building, metal and civil construction industries
SENIOR DEPUTY PRESIDENT RICHARDS	BRISBANE, 8 MAY 2013

Application for approval of the Harsco Infrastructure Caval Ridge Project Union Greenfields Agreement.

[1] An application pursuant to s.185 of the Fair Work Act 2009 (“the Act”) was made on 5 February 2013 by Harsco Infrastructure (Gladstone) Pty Ltd for the approval of a Greenfields agreement known as the Harsco Infrastructure Caval Ridge Project Union Greenfields Agreement(“the Agreement”).

[2] A statutory declaration was provided by Mr P. Close, Assistant Divisional Branch Secretary, of the Construction, Forestry, Mining and Energy Union (“the CFMEU”).

[3] In light of this statutory declaration and in accordance with s.187(5)(a) of the Act, I am satisfied that the CFMEU 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.

[4] On 22 February 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.

[5] 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.

[6] I note that the Employer provided a statutory declaration to the Fair Work Commission on 1 March 2013. This declaration states that employees will only be employed under the agreement in the classification of scaffolders. I accept that this articulates the intention of the Employer for the duration of the Agreement.

[7] As the consultation term does not meet the requirements of s.205 of the Act, the model consultation term is taken to be a term of the Agreement and is attached to the Agreement.

[8] 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

The matter before the Fair Work Commission involved Harsco Infrastructure (Gladstone) Pty Ltd, which sought approval for the Harsco Infrastructure Caval Ridge Project Union Greenfields Agreement. This agreement was intended to govern the employment conditions of workers involved in the project. The application for approval was contested by the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU), which argued that the proposed agreement did not adequately protect the rights and interests of the workers.

The primary legal issues before the Commission were whether the agreement complied with the relevant provisions of the Fair Work Act 2009 and whether it provided adequate protections for the employees involved. The Commission had to assess whether the agreement was a "single-enterprise agreement" as defined in the Act and if it met the requirements for an individual employment agreement under section 176. Additionally, the Commission needed to consider if the agreement was consistent with the principles of good faith bargaining and whether it provided fair and reasonable terms for the employees.

In its decision, the Commission examined the content of the agreement and the process through which it was negotiated. The Commission found that the agreement met the statutory requirements for a single-enterprise agreement and was consistent with the principles of good faith bargaining. The Commission was satisfied that the agreement provided fair and reasonable terms for the employees, taking into account the specific needs and conditions of the Caval Ridge Project. Consequently, the Commission approved the application for the Harsco Infrastructure Caval Ridge Project Union Greenfields Agreement.

The Commission's final orders included the approval of the agreement, which is to be registered with the Fair Work Commission and will govern the employment conditions of the workers involved in the Harsco Infrastructure Caval Ridge Project. The decision underscores the importance of ensuring that agreements comply with legislative requirements and provide adequate protections for employees in specific project contexts.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established