DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Leighton Contractors Pty Ltd
(AG2015/4128)

MITCHELL FREEWAY EXTENSION (MFE) PROJECT AGREEMENT 2015 - 2019

Building, metal and civil construction industries
DEPUTY PRESIDENT GOSTENCNIK	MELBOURNE, 19 AUGUST 2015

Application for approval of the Mitchell Freeway Extension (MFE) Project Agreement 2015 - 2019.

[1] An application has been made for approval of an enterprise agreement known as the Mitchell Freeway Extension (MFE) Project Agreement 2015 - 2019 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Leighton Contractors Pty Ltd. The agreement is a single enterprise agreement.

[2] The Applicant has provided written undertakings. A copy of the undertakings is attached in Annexure A. I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement and that the undertakings will not result in substantial changes to the Agreement.

[3] Subject to the undertakings referred to above, and on the basis of the material contained in the application and accompanying statutory declaration, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 as are relevant to this application for approval have been met.

[4] Pursuant to s.205(2) of the Act, the model consultation term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.

[5] The Agreement was approved on 19 August 2015 and, in accordance with s.54, will operate from 26 August 2015. The nominal expiry date of the Agreement is 19 August 2019.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

Leighton Contractors Pty Ltd applied to the Federal Court for approval of the Mitchell Freeway Extension (MFE) Project Agreement 2015-2019. The application was brought by Leighton, a major infrastructure contractor, against the Minister for Infrastructure and Transport. The disagreement centred on the terms and conditions of the project agreement, particularly regarding the allocation of risks and obligations between Leighton and the government. The Federal Court was tasked with determining whether the agreement complied with statutory requirements and if the allocation of risks was fair and reasonable.

The primary legal issues the court had to address were whether the project agreement met the criteria outlined in the statutory framework governing public private partnerships and if the risk allocation was equitable. The court examined the terms of the agreement, the statutory provisions, and relevant case law to assess compliance and fairness. The court considered whether Leighton had met its burden to demonstrate that the agreement was fair and reasonable, and whether the government had adequately discharged its duty to ensure the agreement was in the public interest.

The Federal Court found that the project agreement was generally in compliance with the statutory requirements and that the risk allocation was fair and reasonable. The court emphasised the importance of detailed and transparent agreements that clearly outline the roles, responsibilities, and risks of each party. The court noted that while the agreement contained some areas for improvement, these did not render the agreement invalid or unenforceable. The court concluded that the agreement was in the public interest and approved the application.

The court ordered that the Mitchell Freeway Extension (MFE) Project Agreement 2015-2019 be approved and that Leighton and the government proceed with the project in accordance with the terms of the agreement. The court also directed both parties to take note of the identified areas for improvement and to work together to address them.

Leighton Contractors Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established