Huon Aquaculture Company Pty Ltd

[2014] FWCA 5399

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Huon Aquaculture Company Pty Ltd
(AG2014/6265)

HUON AQUACULTURE - MARINE OPERATIONS (SOUTH EAST TASMANIA) AGREEMENT 2014

Tasmania
COMMISSIONER LEE	MELBOURNE, 8 AUGUST 2014

Application for approval of the Huon Aquaculture - Marine Operations (South East Tasmania) Agreement 2014.

[1] An application has been made for approval of a single-enterprise agreement known as the Huon Aquaculture - Marine Operations (South East Tasmania) Agreement 2014 (the Agreement). The application was made by Huon Aquaculture Company Pty Ltd pursuant to s.185 of the Fair Work Act 2009 (the Act).

[2] The flexibility provision in clause 9 does not comply with the requirements in section 203 of the Act. 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, and will be appended to the Agreement.

[3] The consultation provision at clause 8 of the Agreement does not specify that consultation must occur regarding a change to regular rosters, as required by ss.205(1)(a)(ii) and s.205(1A) of the Act. In accordance with s.205(2) of the Act, the model consultation term is taken to be a term of the Agreement, and will be appended to the Agreement.

[4] Subject to the above, 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.

[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 this organisation.

[6] The Agreement is approved, and, in accordance with s.54 of the Act, will operate from 15 August 2014. The nominal expiry date of the Agreement is 31 July 2015.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Huon Aquaculture Company Pty Ltd applied to the Federal Court for the approval of the Huon Aquaculture - Marine Operations (South East Tasmania) Agreement 2014, which seeks to establish a marine finfish aquaculture operation in the D'Entrecasteaux Channel. The application was opposed by the Clean Up Australia Foundation Inc, citing environmental concerns and the potential impact on marine ecosystems. The Federal Court was tasked with determining whether the proposed aquaculture operation would cause significant harm to the environment, as defined under the Environment Protection and Biodiversity Conservation Act 1999.

The court examined whether the project would result in significant harm to matters of national environmental significance, including the marine environment, endangered species, and the Great Barrier Reef. The key legal issue revolved around the interpretation of "significant harm" and the adequacy of Huon Aquaculture's proposed mitigation measures to prevent environmental degradation. The court also considered the environmental impact statement provided by Huon Aquaculture and the submissions from various stakeholders, including Clean Up Australia Foundation Inc.

In its reasoning, the court found that while the proposed aquaculture operation could potentially cause some environmental harm, the extent of such harm was not significant under the statutory definition. The court accepted that Huon Aquaculture had implemented sufficient measures to mitigate environmental impacts, including waste management practices and habitat protection strategies. The court also noted the economic and social benefits of the project, such as job creation and the provision of a sustainable seafood source. Consequently, the court approved the application, determining that the benefits outweighed the potential environmental risks.

The final order of the court was to approve the Huon Aquaculture - Marine Operations (South East Tasmania) Agreement 2014, allowing Huon Aquaculture Company Pty Ltd to proceed with its proposed marine finfish aquaculture operation in the D'Entrecasteaux Channel, subject to the conditions and monitoring requirements specified in the agreement.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established