John Holland Queensland Pty Limited

[2014] FWCA 804

[2014] FWCA 804

FAIR WORK COMMISSION

DECISION

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

John Holland Queensland Pty Limited
(AG2013/12079)

JOHN HOLLAND QUEENSLAND PTY LTD PTY LIMITED BUILDING AND CONSTRUCTION ENTERPRISE AGREEMENT (QLD & NT) 2012 - 2016

Building, metal and civil construction industries
SENIOR DEPUTY PRESIDENT RICHARDS	BRISBANE, 3 FEBRUARY 2014

Application for approval of the John Holland Queensland Pty Ltd Pty Limited Building and Construction Enterprise Agreement (QLD & NT) 2012 - 2016.

[1] An application pursuant to s.185 of the Fair Work Act 2009 (“the Act”) was made on 20 December 2013 by John Holland Queensland Pty Limited for the approval of a Greenfields agreement known as the John Holland Queensland Pty Ltd Pty Limited Building and Construction Enterprise Agreement (QLD & NT) 2012 - 2016(“the Agreement”).

[2] I consider that clause 8.9 of the Agreement (“employment security, staffing levels and replacement labour”) equally raises enforceability questions. The details in respect of this matter are set out in my decision [2014] FWC 783. I explained in a separate previous decision - [2013] FWC 5033 - that such a clause, as it purports to restrict or qualify the employer’s right to use contractors or utilise contracted labour, may not comprise permitted content for the purposes of s.172 of the Act.

[3] In relation to clause 8.10 of the Agreement (“visa compliance”) which refers to apparent obligations upon the employer to do certain things where “temporary foreign labour” is engaged, I note that a recent decision of the Fair Work Commission 1 has found that a clause in such terms as clause 8.10 of the Agreement is not permitted content (again, for the purposes of s.172 of the Act), and consequently, cannot impose the obligations upon the employer it seeks to impose.

[4] A statutory declaration was provided by Mr J. Ingham, Assistant State Secretary, of the Construction, Forestry, Mining and Energy Union (“the CFMEU”).

[5] In light of this statutory declaration and in accordance with s.187(5)(a) of the Act, I am satisfied that the CFMEU 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 and that it is in the public interest to approve the Agreement.

[6] I am satisfied that each of the requirements of ss.186, 187 and 188 of the Act as are relevant to this application for approval have been met.

[7] The Agreement is approved and will operate in accordance with s.54 of the Act.

SENIOR DEPUTY PRESIDENT

 1   Construction, Forestry, Mining and Energy Union v Baulderstone Pty Ltd[2013] FWC 2671 (O’Callaghan SDP).

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