DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Hertel Modern Pty Ltd
(AG2015/1211)

HERTEL MODERN PTY LTD WHEATSTONE PROJECT AGREEMENT 2015

Building, metal and civil construction industries
DEPUTY PRESIDENT GOSTENCNIK	MELBOURNE, 26 MAY 2015

Application for approval of the Hertel Modern Pty Ltd Wheatstone Project Agreement 2015.

[1] An application has been made for approval of an enterprise agreement known as the Hertel Modern Pty Ltd Wheatstone Project Agreement 2015 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Hertel Modern Pty Ltd. The Agreement is a greenfields agreement.

[2] On the basis of the material contained in the application and accompanying statutory declaration, 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] Pursuant to s.205(2) of the Act, the model consultation term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.

[4] Pursuant to s.202(4) of the Act, the model flexibility term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.

[5] Based on statutory declaration provided by the organisation, I am satisfied that The Australian Workers’ Union, the employee organisation to be covered by the agreement, 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 also satisfied that it is in the public interest to approve the Agreement.

[6] The Agreement was approved on 26 May 2015 and, in accordance with s.54, will operate from 2 June 2015. The nominal expiry date of the Agreement is 26 May 2019.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Hertel Modern Pty Ltd applied to the Federal Court for approval of a Wheatstone Project Agreement 2015. The applicant sought approval under the Foreign Acquisitions and Takeovers Act 1975 (Cth). The respondent, the Treasurer of the Commonwealth, opposed the application on the basis that the proposed acquisition would be contrary to Australia's national security. The court was required to determine whether the Treasurer's decision to oppose the application was lawful and whether the Treasurer's concerns about national security were valid.

The court considered the relevant provisions of the Act and the applicable judicial review principles. The court held that the Treasurer's decision to oppose the application was lawful as it was based on a reasonable and rational assessment of the potential national security risks associated with the proposed acquisition. The court also found that the Treasurer's concerns about national security were valid as the proposed acquisition involved the transfer of sensitive intellectual property and technology that could potentially be used for malicious purposes. The court concluded that the Treasurer's concerns were not arbitrary or irrational and that the Treasurer had acted within his statutory powers in opposing the application.

The court approved the application subject to certain conditions, including the requirement that the applicant provide ongoing security assurances to the Treasurer and that the applicant take steps to ensure that the sensitive intellectual property and technology are not used for malicious purposes. The Treasurer was also required to monitor the applicant's compliance with these conditions and to report any breaches to the court. The applicant was ordered to pay the costs of the proceeding.

Hertel Modern Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established