John Holland Queensland Pty Limited

[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).

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

John Holland Queensland Pty Limited, an applicant, sought approval of an enterprise agreement from the Fair Work Commission. The agreement in question, the John Holland Queensland Pty Limited Building and Construction Enterprise Agreement (QLD & NT) 2012 - 2016, was to govern the terms and conditions of employment for the workers covered by the agreement. The legal issues before the court were primarily concerned with whether the agreement complied with the Fair Work Act 2009 and whether it was made in good faith and met the requirements for being a lawful and valid enterprise agreement.

The court examined the process through which the agreement was made, ensuring that it was free from any improper influence or coercion. It assessed whether the agreement contained the minimum terms and conditions as required by the Fair Work Act and whether it was made in accordance with the procedures outlined in the Act. Additionally, the court considered whether the agreement met the criteria for being a "single interest" agreement, which is essential for the approval of an enterprise agreement. The court also reviewed the fairness of the agreement, ensuring that it did not adversely affect employees or their rights.

In its decision, the court found that the agreement met all the necessary legal requirements and was made in good faith. The agreement was deemed to be a lawful and valid enterprise agreement as it contained the minimum terms and conditions as prescribed by the Fair Work Act. Furthermore, the court concluded that the agreement was made in accordance with the procedures outlined in the Act and was a "single interest" agreement. The court was satisfied that the agreement was fair and did not adversely affect the employees, and thus approved the agreement.

The final orders of the court were that the John Holland Queensland Pty Limited Building and Construction Enterprise Agreement (QLD & NT) 2012 - 2016 be approved as a lawful and valid enterprise agreement. The agreement would then be registered with the Fair Work Commission and would govern the employment terms and conditions for the workers covered by the agreement.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established