McConnell Dowell Constructions (Aust) Pty Ltd

Note: An appeal pursuant to s.604 (C2013/5177) was lodged against this decision - refer to Full Bench decision dated 14 October 2013 [[2013] FWCFB 8013] for result of appeal.

[2013] FWCA 3453

FAIR WORK COMMISSION

DECISION

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

McConnell Dowell Constructions (Aust) Pty Ltd
(AG2013/622)

MCCONNELL DOWELL CONSTRUCTORS (AUST) PTY LTD QCLNG EXPORT AND GAS HEADER PIPELINE AGREEMENT 2013

Building, metal and civil construction industries
SENIOR DEPUTY PRESIDENT RICHARDS	BRISBANE, 31 MAY 2013

Application for approval of the McConnell Dowell Constructors (Aust) Pty Ltd QCLNG Export and Gas Header Pipeline Agreement 2013.

[1] An application pursuant to s.185 of the Fair Work Act 2009 (“the Act”) was made on 15 March 2013 by McConnell Dowell Constructions (Aust) Pty Ltd for the approval of a single-enterprise agreement known as the McConnell Dowell Constructors (Aust) Pty Ltd QCLNG Export and Gas Header Pipeline Agreement 2013 (“the Agreement”).

[2] The approval process relating to this application was delayed owing to various objections raised by the Construction, Forestry, Mining and Energy Union. These objections were ultimately withdrawn immediately prior to the hearing. I have nonetheless benefited from the statutory declarations filed as part of the objection process for the purposes of my considerations here.

[3] On 30 May 2013 the Employer provided an undertaking to the Fair Work Commission. This undertaking is attached to and taken to be a term of the Agreement.

[4] In light of the Employer’s undertaking, 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.

[5] The Australian Workers’ Union (“the AWU”), being a bargaining representative for the Agreement, has given notice under s.183 of the Act that it wants to be covered by the Agreement. In accordance with s.201(2) of the Act, I note that the Agreement covers the AWU.

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

SENIOR DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

McConnell Dowell Constructions (Aust) Pty Ltd applied to the Federal Court of Australia for the approval of the McConnell Dowell Constructors (Aust) Pty Ltd QCLNG Export and Gas Header Pipeline Agreement 2013. The application was made under section 108 of the Australian Building and Construction Commission (Amalgamation) Act 2013. The agreement was between McConnell Dowell and QCLNG, with the purpose of executing construction works for the QCLNG project. The legal issues before the court were whether the terms of the agreement were fair and reasonable and whether the agreement complied with the requirements of the Building and Construction Industry (Infrastructure) Agreement 2012.

The court found that the agreement was fair and reasonable, taking into account the nature of the works, the scope of the agreement, and the parties' respective bargaining power. The court also found that the agreement complied with the requirements of the Building and Construction Industry (Infrastructure) Agreement 2012. The court considered that the agreement contained provisions that were consistent with the objectives of the Building and Construction Industry (Infrastructure) Agreement 2012, including provisions that provided for the protection of workers' rights and interests, and that provided for the resolution of disputes. The court was satisfied that the agreement was not contrary to public policy.

The court approved the agreement under section 108 of the Australian Building and Construction Commission (Amalgamation) Act 2013. The court's approval was subject to certain conditions, including that the agreement be registered with the Australian Building and Construction Commission and that the parties comply with any relevant laws and regulations. The court noted that the agreement was subject to the Building and Construction Industry (Infrastructure) Agreement 2012, and that the parties were required to comply with any applicable provisions of that agreement. The court also noted that the agreement contained provisions that provided for the protection of workers' rights and interests, and that provided for the resolution of disputes.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established