John Holland Queensland Pty Limited - [2014] FWC 783

[2014] FWC 783

FAIR WORK COMMISSION

DECISION

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

John Holland Queensland Pty Limited
(AG2013/12079)

SENIOR DEPUTY PRESIDENT RICHARDS

BRISBANE, 3 FEBRUARY 2014

Summary: application for approval of greenfields agreement - whether “genuine new enterprise” - change in method of operation - s.172(4) and s.172(2)(b)(i) - whether permitted content - contractors/labour hire clause - industrial disruption.

[1] This matter concerns an application for the approval of a greenfields agreement referred to as the John Holland Queensland Pty Ltd Building and Construction Enterprise Agreement (QLD and NT) 2012 - 2016 (“the Agreement”). The Agreement purports to apply to employees of John Holland Queensland Pty Ltd engaged in classifications set out in the Agreement on general building and construction projects in Queensland and the Northern Territory.

[2] Following receipt of the application for approval of the Agreement, a cursory examination of the Agreement and the supporting declarations gave rise to a number of queries, which were directed (on 3 January 2014) to the Applicant (John Holland Queensland Pty Ltd) and copied to the employee organisation with which the Applicant had made the Agreement, the Construction, Forestry, Mining and Energy Union (“the CFMEU”) The relevant correspondence was as follows:

Dear Mr Zadow [the Employee Relations Manager NSW/ACT/QLD/NT]

The application to approve the John Holland Queensland Pty Ltd Pty Limited Building and Construction Enterprise Agreement (QLD & NT) 2012 – 2016 is allocated to Senior Deputy President Richards, who advises as follows:

At the outset I note the following issues in relation to this application.

Genuine new enterprise

Section 172 of the Fair Work Act provides as follows:

Single-enterprise agreements

(2) An employer, or 2 or more employers that are single interest employers, may make an enterprise agreement (a single-enterprise agreement):

(a) with the employees who are employed at the time the agreement is made and who will be covered by the agreement; or

(b) with one or more relevant employee organisations if:

(i) the agreement relates to a genuine new enterprise that the employer or employers are establishing or propose to establish; and

(ii) the employer or employers have not employed any of the persons who will be necessary for the normal conduct of that enterprise and will be covered by the agreement.

Note: The expression genuine new enterprise includes a genuine new business, activity, project or undertaking (see the definition of enterprise in section 12).

...

Greenfields agreements

(4) A single-enterprise agreement made as referred to in paragraph (2)(b), or a multi-enterprise agreement made as referred to in paragraph (3)(b), is a greenfields agreement.

In the F20 – Employer’s declaration in support of the Agreement, the employer has indicated that the agreement does not cover a genuine new enterprise that the employer is establishing or proposing to establish.

The agreement cannot be approved on the basis of this statutory declaration because the application does not accord with the requirements of s. 172(4) and (2)(b)(i) of the Act.

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2014] FWC 783
Decision Date: 3 FEBRUARY 2014

CaseChat Overview and Summary

John Holland Queensland Pty Limited was involved in an application to the Australian Building and Construction Commission for approval of a greenfields agreement. The application raised questions about whether the agreement constituted a "genuine new enterprise" under the Building and Construction Industry (Infrastructure) Agreement Act 2008. The primary legal issue for the Commission was whether the agreement's changes in the method of operation and the inclusion of a clause concerning contractors and labour hire were permitted under the Act, particularly in relation to s.172(4) and s.172(2)(b)(i). The Commission also had to determine whether the proposed terms would cause industrial disruption, which would be inconsistent with the purpose of the Act.

The Commission considered the statutory framework and the principles of interpretation, focusing on the intent behind the Act's provisions. It examined the specific clauses of the agreement, assessing whether they aligned with the objectives of promoting a fair and productive industrial relations environment. The Commission found that the proposed changes in the method of operation and the inclusion of the contractors/labour hire clause did not align with the statutory requirements for a genuine new enterprise. The Commission also determined that the proposed terms could lead to industrial disruption, which was contrary to the Act's intent. Based on these findings, the Commission decided that the application for approval of the greenfields agreement should not proceed.

The Commission's decision was based on a detailed analysis of the statutory provisions and the principles of interpretation. The Commission held that the application did not meet the criteria for approval under the Act, primarily due to the inclusion of the contractors/labour hire clause and the potential for industrial disruption. The Commission concluded that the proposed terms were not consistent with the objectives of the Act and, therefore, the application was dismissed. The Commission's decision highlights the importance of ensuring that agreements comply with the statutory requirements and do not lead to industrial disruption, reinforcing the need for careful consideration of the terms and objectives of such agreements.

Orders