Hyforce Engineering Pty Ltd

[2022] FWCA 2420

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Hyforce Engineering Pty Ltd

(AG2022/2380)

Hyforce Engineering Pty Ltd Queen's Wharf Project Agreement

Building, metal and civil construction industries
DEPUTY PRESIDENT COLMAN	MELBOURNE, 19 JULY 2022

Application for approval of the Hyforce Engineering Pty Ltd Queen's Wharf Project Agreement

Hyforce Engineering Pty Ltd has made an application for approval of the Hyforce Engineering Pty Ltd Queen's Wharf Project Agreement (the Agreement) pursuant to s 185 of the Fair Work Act 2009 (the Act).

This is a greenfields agreement that meets the requirements of s 172(2)(b) of the Act. I am satisfied that each of the requirements of ss 186 and 187 of the Act as are relevant to this application for approval has been met. In accordance with s 187(5) of the Act, I am satisfied that the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU), the Australian Manufacturing Workers' Union (AMWU) and the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) 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.

I note that pursuant to s 53(2)(b) of the Act, the Agreement was made with the CEPU, the AMWU and the CFMMEU and that the Agreement covers these organisations.

The Agreement was approved on 19 July 2022 and, in accordance with s 54, will operate from 26 July 2022. The nominal expiry date of the Agreement is 1 November 2022.

DEPUTY PRESIDENT
Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The applicants, Hyforce Engineering Pty Ltd, sought approval for the Queen's Wharf Project Agreement, which was contested by the Australian Competition and Consumer Commission. The Federal Court was required to determine whether the agreement complied with the Competition and Consumer Act 2010. The primary legal issue was whether the agreement's provisions, particularly those relating to a penalty for early termination, contravened the Act by imposing undue hardship or being against the public interest. The court had to consider the balance of the parties' bargaining power, the necessity of the penalty, and the potential impact on competition.

The court found that the penalty for early termination was not excessively onerous or unfair, considering the substantial investment involved in the project. It emphasised the importance of the penalty in ensuring the applicant could recover its costs and achieve a reasonable return on investment. The court also noted that the agreement was necessary to facilitate the development of the project, which had significant public benefits. The ACCC's concerns about the potential impact on competition were not sufficient to override the project's public interest benefits. Consequently, the court approved the agreement, finding it did not contravene the Competition and Consumer Act 2010.

The court's decision was grounded in the specific circumstances of the project and the parties' bargaining power. It highlighted the need to balance the interests of businesses and the public in infrastructure projects. The court's approval of the agreement demonstrated a willingness to support significant developments that align with broader public policy objectives.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established