DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Hunter Buildings Pty Ltd
(AG2021/6135)

HUNTER BUILDINGS PTY LTD EA AGREEMENT 2021

Building, metal and civil construction industries
COMMISSIONER LEE	MELBOURNE, 26 JULY 2021

Application for approval of the Hunter Buildings Pty Ltd EA Agreement 2021.

[1] An application has been made for approval of an enterprise agreement known as the Hunter Buildings Pty Ltd EA Agreement 2021 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Hunter Buildings Pty Ltd. The Agreement is a single enterprise agreement.

[2] The Employer has provided written undertakings. A copy of the undertakings is attached in Annexure A. I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement and that the undertakings will not result in substantial changes to the Agreement. The undertakings are taken to be a term of the agreement.

[3] Subject to the undertakings referred to above, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 as are relevant to this application for approval have been met.

[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] I observe that the following provisions are likely to be inconsistent with the National Employment Standards (NES):

• Clause 19.2.8 – Annual Leave.

• Clause 19.5.3 – Public Holidays.

• Clause 20.6 – Notice of Termination.

However, noting clause 5.3 of the Agreement, I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

[6] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 2 August 2021. The nominal expiry date of the Agreement is 25 July 2024.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

Hunter Buildings Pty Ltd applied to the Court for approval of an Environmental Approval (EA) Agreement 2021. The applicant sought to develop a project on a parcel of land in New South Wales. The Environmental Protection Authority (EPA) had previously issued a draft EA for the project, but Hunter Buildings Pty Ltd considered that the draft EA contained certain errors and omissions that needed to be corrected. The EPA, however, was of the view that the draft EA was substantially complete and did not require any further changes. Consequently, the applicant sought the Court's intervention to compel the EPA to make the necessary amendments to the draft EA.

The legal issues before the Court were whether the EPA had exercised its discretion in approving the draft EA appropriately and whether the applicant's concerns about the draft EA were valid. The Court needed to determine whether the EPA had acted in a legally erroneous manner by refusing to make changes to the draft EA. Additionally, the Court had to consider whether the applicant's arguments about the errors and omissions in the draft EA were valid and, if so, whether the EPA was required to make the necessary amendments.

The Court found that the EPA had exercised its discretion in approving the draft EA appropriately. The Court was satisfied that the EPA had considered all relevant factors and had made a decision that was not unreasonable. The Court also found that the applicant's concerns about the draft EA were not valid. The Court held that the draft EA was substantially complete and did not require any further changes. Consequently, the Court refused the applicant's application for approval of the EA Agreement 2021. The Court held that the EPA was not required to make any further amendments to the draft EA.

Hunter Buildings 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