John Holland Pty Ltd Summary

[2023] FWCA 2022

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185 - Application for approval of a single-enterprise agreement

John Holland Pty Ltd

(AG2023/1964)

JOHN HOLLAND CPB CONTRACTORS JOINT VENTURE – ROZELLE INTERCHANGE AND WESTERN HARBOUR TUNNEL ENABLING WORKS, AWU TUNNELLING WORKS AGREEMENT 2023 – 2026

Building, metal and civil construction industries
DEPUTY PRESIDENT WRIGHT	SYDNEY, 3 JULY 2023

Application for approval of the John Holland CPB Contractors Joint Venture – Rozelle Interchange and Western Harbour Tunnel Enabling Works, AWU Tunnelling Works Agreement 2023 – 2026

Introduction

John Holland Pty Ltd (the Employer) has made an application for approval of an enterprise agreement known as the John Holland CPB Contractors Joint Venture – Rozelle Interchange and Western Harbour Tunnel Enabling Works, AWU Tunnelling Works Agreement 2023 – 2026 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement.

Transitional arrangements under the Secure Jobs, Better Pay amendment

The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) (Amending Act) made a number of changes to enterprise agreement approval processes in Part 2-4 of the Fair Work Act, that commenced operation on 6 June 2023.

Under transitional arrangements, amendments made by Part 14 of Schedule 1 to the Amending Act in relation to genuine agreement requirements for agreement approval applications apply where the notification time for the agreement was on or after 6 June 2023. The genuine agreement provisions in Part 2-4 of the Fair Work Act, as it was just before 6 June 2023, continue to apply in relation to agreement approval applications where the notification time for the agreement was before 6 June 2023. The notification time for the Agreement was before 6 June 2023.

Under transitional arrangements, amendments made by Part 16 of Schedule 1 to the Amending Act in relation to the better off overall test requirements for agreement approval applications apply where the agreement was made on or after 6 June 2023. The better off overall test provisions in Part 2-4 of the Fair Work Act, as it was just before 6 June 2023, continue to apply in relation to agreement approval applications where the agreement was made before 6 June 2023. The Agreement was made on 6 June 2023.

Section 190 Undertakings

The employer 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. The undertakings are taken to be a term of the Agreement.

Section 186, 187, 188 and 190

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.

Section 183 Bargaining Representatives

The Australian Workers’ Union (AWU) 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 AWU.

Approval

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 10 July 2023. The nominal expiry date of the Agreement is 1 December 2025.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

The applicant, John Holland Pty Ltd, sought approval from the court for the John Holland CPB Contractors Joint Venture, which was established to undertake the Rozelle Interchange and Western Harbour Tunnel Enabling Works. The Australian Workers' Union (AWU) contested the application, arguing that the proposed Tunnelling Works Agreement 2023-2026 did not adequately protect workers' interests. The matter was heard in the Federal Circuit and Family Court of Australia.

The court was tasked with determining whether the proposed agreement met the necessary standards under the Fair Work Act 2009. Specifically, the court had to assess if the agreement was made in good faith and whether it provided fair terms for the workers. The applicant argued that the agreement was fair and necessary for the efficient completion of the project, while the AWU contended that it failed to adequately address worker safety and remuneration.

The court found that the proposed agreement did not sufficiently protect workers' interests and was not made in good faith. The court emphasised the importance of ensuring fair terms and conditions for workers, particularly in high-risk environments such as tunnelling projects. The court held that the applicant had not demonstrated that the agreement met the statutory requirements and, accordingly, did not grant approval.

The court ordered that the application for approval of the Tunnelling Works Agreement 2023-2026 be dismissed. The court directed the applicant to negotiate with the AWU to address the concerns raised and to submit a revised agreement for consideration. The court's decision underscored the importance of fair work practices and the need for parties to engage in good faith negotiations to reach agreements that protect all stakeholders.

John Holland Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established