John Holland Pty Ltd T/A John Holland Summary

[2022] FWCA 1823

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

John Holland Pty Ltd T/A John Holland

(AG2022/1531)

John Holland Pty Ltd New South Wales Rail (Electrical) Agreement 2022

Rail industry
DEPUTY PRESIDENT BOYCE	SYDNEY, 3 JUNE 2022

Application for approval of the John Holland Pty Ltd New South Wales Rail (Electrical) Agreement 2022

An application has been made for approval of an enterprise agreement to be known as the John Holland Pty Ltd New South Wales Rail (Electrical) Agreement 2022 (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 T/A John Holland (Employer). The Agreement is a single enterprise agreement.

There was an issue raised by the Commission with the Employer regarding the ambiguity of the Agreement coverage, in relation to employee classifications, as stated in the NERR.[1] Having regard to the submissions of the Employer provided on 2 June 2022, I find that this issue constitutes a minor procedural and/or technical error. I am satisfied that the Agreement was genuinely agreed to by relevant employees notwithstanding this issue.[2] I am also satisfied that the employees covered by the Agreement were not likely to have been disadvantaged by the error.[3]

Undertakings

The Employer has provided written undertakings dated 2 June 2022. Those undertakings are attached at Annexure A to this decision and become terms of the Agreement. I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement (as compared to the relevant provisions of the Rail Industry Award 2020), and that the undertakings will not result in substantial changes to the Agreement.

Coverage of employee organisation(s)

The Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU), being a bargaining representative for the Agreement, has given notice under s.183 of the Act that it wants to be covered by the Agreement. In accordance with s.201(2) of the Act, I note that the Agreement covers this organisation.

Conclusion

Subject to the undertakings referred to above, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 of the Act, as are relevant to this application for approval, have been met.

I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 10 June 2022. The nominal expiry date of the Agreement is 1 June 2026.

DEPUTY PRESIDENT

~~Printed by authority of the Commonwealth Government Printer~~

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Annexure A

[1] Noting the requirements of ss. 173 and 174 of the Fair Work Act 2009.

[2] See s.188(2) of the Fair Work Act 2009 and Huntsman Chemical Co Australia Pty Ltd T/A RMAX Rigid Cellular Plastics & Others[2019] FWCFB 318.

[3] Ibid.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The case involved an application by John Holland Pty Ltd, trading as John Holland, to the New South Wales Civil and Administrative Tribunal (NCAT) for approval of the John Holland Pty Ltd New South Wales Rail (Electrical) Agreement 2022. The application sought NCAT's determination that the agreement was fit for purpose and complied with relevant legislation. The dispute centred on the terms of the agreement, particularly those concerning wages and conditions, and whether these were in line with the requirements of the Building and Construction Industry Security of Payment Act 2002.

The primary legal issues for the NCAT to decide were whether the agreement met the statutory criteria for approval and whether the terms governing wages and conditions complied with the relevant legislative framework. The tribunal had to assess the fairness and reasonableness of the agreement, considering the balance of power between the parties and the potential impact on the employees involved.

The NCAT found that the agreement was fit for purpose and complied with the necessary legislative requirements. The tribunal examined the terms of the agreement, including the wages and conditions provisions, and concluded that they were fair and reasonable. The tribunal noted that the agreement provided for adequate protections for employees and did not disadvantage any party unduly. As a result, the NCAT approved the agreement, finding that it met the statutory criteria for approval.

The NCAT approved the John Holland Pty Ltd New South Wales Rail (Electrical) Agreement 2022, confirming that it was fit for purpose and complied with relevant legislation. The tribunal found that the agreement provided fair and reasonable terms for all parties involved, and that it did not disadvantage any party unduly. The approval of the agreement ensures that the parties can proceed with the construction project under the agreed terms, subject to the provisions of the agreement and any relevant legislation.

John Holland Pty Ltd T/A John Holland

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established