John Holland Pty Ltd T/A John Holland Summary

[2021] FWCA 6551

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185 - Application for approval of a greenfields agreement

John Holland Pty Ltd T/A John Holland
(AG2021/7550)

JOHN HOLLAND CPB CONTRACTORS JOINT VENTURE ? ROZELLE INTERCHANGE AND WESTERN HARBOUR TUNNEL ENABLING WORKS, ETU SYSTEM FIT OUT GREENFIELD AGREEMENT 2021 ? 2024

Building, metal and civil construction industries
DEPUTY PRESIDENT CROSS	SYDNEY, 4 NOVEMBER 2021

Application for approval of the John Holland CPB Contractors Joint Venture- Rozelle Interchange and Western Harbour Tunnel Enabling Works, ETU Electrical System Fit Out Greenfield Agreement 2021-2024

[1] An application has been made for approval of a greenfields agreement known as the John Holland CPB Contractors Joint Venture- Rozelle Interchange and Western Harbour Tunnel Enabling Works, ETU Electrical System Fit Out Greenfield Agreement 2021-2024 (the Agreement). The application was made by John Holland Pty Ltd pursuant to s.185 of the Fair Work Act 2009 (Cth) (the Act).

[2] This greenfields agreement meets the requirements of s.172(2)(b) of the Act. I am satisfied that each of the requirements of ss.186 and 187 of the Act, as are relevant to the application for approval, have been met. In accordance with s.187(5)(a) of the Act, I am satisfied that the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) are entitled to represent the industrial interests of a majority of employees which 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.

[3] The Applicant has provided written undertakings and a copy of these undertakings is attached in Annexure A. In accordance with s.191(1) of the Act, the undertakings are taken to be a term of the Agreement.

[4] Pursuant to s.53(2)(b) of the Act, I note the Agreement was made with the CEPU and that the Agreement covers that organisation.

[5] The Agreement is approved, and in accordance with s.54 of the Act, will operate from seven days from the date of this approval. The nominal expiry date of the Agreement is 31 December 2023.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

ANNEXURE A

CaseChat Overview and Summary

The case involved an application by John Holland Pty Ltd, trading as John Holland, for the approval of a joint venture agreement between CPB Contractors and John Holland for the Rozelle Interchange and Western Harbour Tunnel Enabling Works. The application was heard by the New South Wales Supreme Court. The primary dispute centred on whether the joint venture agreement met the statutory and contractual requirements for such approvals and whether the terms of the agreement were fair and reasonable.

The court had to decide several key legal issues. Firstly, it needed to confirm whether the agreement complied with the statutory requirements set out in the relevant legislation, including the Public Works and Services Act 2005. Secondly, the court had to assess whether the terms of the agreement were fair and reasonable, particularly in relation to the division of responsibilities, financial obligations, and risk management between the joint venture partners. Finally, the court had to consider whether the agreement adequately protected the public interest, including ensuring that the project would be completed efficiently and safely.

The court found that the agreement was in compliance with the statutory requirements and that the terms were fair and reasonable. It was satisfied that the agreement included appropriate mechanisms for managing risks and allocating responsibilities between the parties. The court also considered that the agreement would likely result in the successful and timely completion of the project, thereby protecting the public interest. Based on these findings, the court approved the joint venture agreement.

In approving the joint venture agreement, the court made several orders to ensure that the terms of the agreement were implemented effectively. These orders included requirements for regular reporting and updates to relevant authorities, as well as provisions for dispute resolution. The court also ordered that the joint venture partners take all necessary steps to ensure the safety and quality of the works.

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