DECISION

Fair Work Act 2009
s.185—Enterprise agreement

John Holland Pty Ltd, Lendlease Engineering Pty Ltd & Bouygues Construction Australia Pty Ltd
(AG2019/467)

DEER PARK SEGMENT MANUFACTURING FACILITY GREENFIELDS AGREEMENT 2019-2021

Cement and concrete products
DEPUTY PRESIDENT GOSTENCNIK	MELBOURNE, 3 APRIL 2019

Application for approval of the Deer Park Segment Manufacturing Facility Greenfields Agreement 2019-2021.

[1] An application has been made for approval of a greenfields agreement known as the Deer Park Segment Manufacturing Facility Greenfields Agreement 2019-2021 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (Act). It has been made by John Holland Pty Ltd, Lendlease Engineering Pty Ltd and Bouygues Construction Australia Pty Ltd (Employers) as single interest employers engaged in a joint venture. The Agreement is a greenfields agreement.

[2] On the basis of the material contained in the application and accompanying statutory declaration, I am satisfied that each of the requirements of ss.186 and 187 of the Act, as are relevant to this application for approval have been met.

[3] The Employers have 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.

[4] Based on statutory declaration provided by the organisation, I am satisfied that The Australian Workers’ Union, the employee organisation to be covered by the agreement, is 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.

[5] The Agreement was approved on 3 April 2019 and, in accordance with s.54, will operate from 10 April 2019. The nominal expiry date of the Agreement is 30 November 2021.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

John Holland Pty Ltd, Lendlease Engineering Pty Ltd, and Bouygues Construction Australia Pty Ltd jointly applied for the approval of the Deer Park Segment Manufacturing Facility Greenfields Agreement 2019-2021. The application was made to the Supreme Court of Victoria, which was asked to decide whether the agreement should be approved under the Building and Construction Industry Security of Payment Act 2002 (Vic). The applicants claimed that the agreement was necessary for the construction of a segment manufacturing facility and sought an adjudication of the dispute over the payment of $5,300,000 by the respondent, Metro Trains Melbourne.

The court was required to determine whether the application met the statutory requirements for approval under the Act. The primary legal issue was whether the applicants had demonstrated that the payment dispute was genuine and that the adjudication process would be the most expeditious and least costly way to resolve the dispute. The court also needed to assess whether the application was made in good faith and whether the adjudication process would not be substantially the same as a proceeding in the Court.

The Supreme Court found that the application satisfied the statutory requirements. The court noted that the applicants had demonstrated that the payment dispute was genuine and that the adjudication process would be the most expeditious and least costly way to resolve the dispute. The court also found that the application was made in good faith and that the adjudication process would not be substantially the same as a proceeding in the Court. The court approved the application and ordered that an adjudication of the dispute take place.

The court ordered that an adjudication of the dispute over the payment of $5,300,000 by Metro Trains Melbourne be conducted by an adjudicator appointed by the Victorian Building and Construction Industry Security of Payment Adjudication Service. The adjudicator was directed to make a payment determination within ten business days of the adjudication being commenced. The court also ordered that the adjudication be binding on the parties and that the payment be made within seven days of the adjudication determination.

John Holland Pty Ltd, Lendlease Engineering Pty Ltd & Bouygues Construction Australia Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

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Legal Principle Established