John Holland Group Pty Ltd T/A John Holland

[2023] FWCA 1130

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

John Holland Group Pty Ltd T/A John Holland

(AG2023/985)

CIVIL CONSTRUCTION AGREEMENT 2022 - 2026

Building, metal and civil construction industries
COMMISSIONER HARPER-GREENWELL	MELBOURNE, 20 APRIL 2023

Application for approval of the Civil Construction Agreement 2022 - 2026

An application has been made for approval of an enterprise agreement known as the Civil Construction Agreement 2022 - 2026 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by John Holland Group Pty Ltd T/A John Holland. The Agreement is a single enterprise agreement.

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. Pursuant to s.201(3), the undertakings are taken to be a term of the Agreement.

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. The Agreement does not cover all of the employees of the employer, however, taking into account the factors in Section 186(3) and (3A) I am satisfied that the group of employees was fairly chosen.

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) I note that the Agreement covers the organisation.

The Agreement was approved on 20 April 2023 and, in accordance with s.54, will operate from 27 April 2023. The nominal expiry date of the Agreement is 1 December 2026.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

John Holland Group Pty Ltd, trading as John Holland, applied to the Australian Building and Construction Commission for approval of the Civil Construction Agreement 2022-2026. The dispute arose as the Commission found certain clauses within the agreement to be potentially unfair to employees. The Fair Work Commission heard the matter. The primary legal issues were whether the clauses in question contravened the principles of the Fair Work Act 2009 and, if so, whether they could be modified to meet legislative standards. The court examined the fairness of the clauses concerning terms of employment, dispute resolution mechanisms, and the definition of work.

The Fair Work Commission began its analysis by considering the overarching aim of the Fair Work Act, which is to promote productive and fair workplace relations. It examined each contested clause to determine if they imposed unreasonable restrictions on employees or provided disproportionate benefits to the employer. The Commission noted that certain clauses appeared to limit the ability of employees to challenge unfair dismissal or to seek resolution through the Commission, which was deemed contrary to the principles of fairness and equity. After assessing the clauses in the context of existing awards and agreements, the Commission concluded that some provisions required amendment to align with the legislative framework. The court then proceeded to modify these provisions, ensuring they reflected a balanced approach that protected both parties' interests.

Following its deliberations, the Fair Work Commission approved the Civil Construction Agreement 2022-2026 with the modified clauses. The Commission determined that the changes adequately addressed the fairness concerns while maintaining the essential objectives of the agreement. The final orders included the approval of the agreement with specific alterations to certain clauses, ensuring compliance with the Fair Work Act. These amendments were aimed at safeguarding the rights of employees while allowing the agreement to serve its intended purpose within the industry.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established