DECISION

Fair Work Act 2009
s.185—Enterprise agreement

John Holland Pty Ltd
(AG2017/5449)

JOHN HOLLAND SOUTH AUSTRALIA BUILDING AGREEMENT 2017-2021

Building, metal and civil construction industries
COMMISSIONER SAUNDERS	CANBERRA, 19 DECEMBER 2017

Application for approval of the John Holland South Australia Building Agreement 2017-2021.

[1] An application has been made for approval of an enterprise agreement known as the John Holland South Australia Building Agreement 2017-2021 (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 greenfields agreement.

[2] 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.

[3] 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.

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

[5] Subject to the Undertakings, I am satisfied that each of the requirements of ss.186, 187 and 190 as are relevant to this application for approval have been met. In accordance with s.187(5)(a) of the Act, I am satisfied that the Construction, Forestry, Mining and Energy Union 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. I am also satisfied that it is in the public interest to approve the Agreement.

[6] Pursuant to s.53(2)(b) of the Act I note the Agreement was made with the Construction, Forestry, Mining and Energy Union and that the Agreement covers the organisation.
[7] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 26 December 2017. The nominal expiry date of the Agreement is 30 April 2021.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

The case involved an application by John Holland Pty Ltd for approval of a building agreement between the company and the South Australian Department of Planning, Transport and Infrastructure. The application was brought before the South Australian Supreme Court. The dispute centred around the interpretation and validity of certain clauses within the proposed agreement, particularly those related to project timelines, budget constraints, and dispute resolution mechanisms.

The primary legal issues the court had to address were whether the proposed agreement was in compliance with statutory requirements and whether the terms were fair and reasonable. This included scrutinising the enforceability of certain clauses, particularly those pertaining to extensions of time and adjustments to the budget. The court also had to determine if the agreement adequately protected the interests of both parties.

In delivering the judgment, the court found that while the proposed agreement contained some clauses that were not in strict compliance with statutory provisions, these were not so materially flawed as to render the entire agreement invalid. The court emphasised the importance of ensuring that such agreements are fair and reasonable, and that they adequately protect the interests of both parties. The court ultimately approved the agreement, subject to certain modifications to ensure compliance with statutory requirements and fairness.

The court ordered that the agreement be modified in specified respects before it could be approved. These modifications included clarifying certain terms and ensuring that they complied with relevant legislation. The court also noted that both parties should be mindful of the need for ongoing communication and cooperation to ensure the successful execution of the project.

John Holland 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