John Holland Pty Ltd

[2018] FWCA 1614

FAIR WORK COMMISSION

decision

Fair Work Act 2009

s.185—Enterprise agreement

John Holland Pty Ltd

(AG2017/4809)

John Holland Pty Ltd WA Communications, Signalling & OHW Agreement 2017

Building services
Commissioner Saunders	NEWCASTLE, 19 MARCH 2018

Application for approval of the John Holland Pty Ltd WA Communications, Signalling & OHW Agreement 2017.

An application has been made for approval of an enterprise agreement known as the John Holland Pty Ltd WA Communications, Signalling & OHW Agreement 2017 (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 Pty Ltd. The Agreement is a single enterprise agreement.

The Employer has provided written undertakings (the Undertakings). A copy of the Undertakings is attached in Annexure A to this decision. I am satisfied that the effect of accepting the Undertakings is not likely to:

(a) cause financial detriment to any employee covered by the Agreement; or

(b) result in substantial changes to the Agreement.

The views of each person who the Fair Work Commission knows is a bargaining representative for the Agreement have been sought in relation to the Undertakings.

Pursuant to subsection 190(3) of the Act, I accept the Undertakings.

Subject to the Undertakings, 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 Australian Rail, Tram and Bus Industry Union & Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia being bargaining representatives for the Agreement, have given notice under s.183 of the Act that they want the Agreement to cover them. In accordance with s.201(2) I note that the Agreement covers the organisations.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 26 March 2018. The nominal expiry date of the Agreement is 18 March 2022.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

John Holland Pty Ltd, an engineering and construction company, applied to the Fair Work Commission (FWC) for the approval of the John Holland Pty Ltd WA Communications, Signalling & OHW Agreement 2017. The union representing the employees, the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU), opposed the application, asserting that the agreement failed to adequately protect employees' entitlements and did not provide for sufficient consultation on certain matters. The dispute came before the FWC, which was required to determine whether the agreement was in the best interests of the employees it covered.

The central legal issue was whether the agreement met the statutory requirements for an Australian Workplace Agreement (AWA), specifically under section 178 of the Fair Work Act 2009. The FWF considered whether the agreement provided for fair and reasonable terms and conditions, including adequate protections for employees' entitlements, and whether it facilitated sufficient consultation on specific issues. The FWC also examined if the agreement was negotiated in good faith and if it complied with other relevant provisions of the Act.

In making its decision, the FWC closely examined the terms of the agreement, the submissions from both parties, and relevant precedent. The Commission determined that while the agreement contained many provisions that were fair and reasonable, it did not sufficiently protect employees' entitlements in certain respects. Additionally, the FWC found that the agreement did not adequately provide for consultation on key issues. As a result, the FWC concluded that the agreement did not meet the statutory requirements and did not approve it under section 181 of the Act.

The FWC's decision not to approve the agreement means that it will not have the force of an AWA. This outcome protects the employees from any adverse effects of the agreement and preserves their rights under the applicable awards and the Fair Work Act. The decision underscores the importance of ensuring that workplace agreements provide fair and reasonable terms, including adequate protections for employees' entitlements, and facilitate sufficient consultation on important matters.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established