McConnell Dowell Constructors (Aust) Pty Ltd T/A McConnell Dowell Summary

[2023] FWCA 2565

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185 - Application for approval of a greenfields agreement

McConnell Dowell Constructors (Aust) Pty Ltd T/A McConnell Dowell

(AG2023/2590)

MCCONNELL DOWELL CONSTRUCTORS (AUST.) PTY LTD AURA & HARMONY TRUNK INFRASTRUCTURE WORKS GREENFIELDS AGREEMENT

Building, metal and civil construction industries
COMMISSIONER DURHAM	BRISBANE, 15 AUGUST 2023

Application for approval of the McConnell Dowell Constructors (Aust.) Pty Ltd Aura & Harmony Trunk Infrastructure Works Greenfields Agreement

An application has been made for the approval of a greenfields agreement known as the McConnell Dowell Constructors (Aust.) Pty Ltd Aura & Harmony Trunk Infrastructure Works Greenfields Agreement (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by McConnell Dowell Constructors (Aust) Pty Ltd T/A McConnell Dowell (the Applicant).

This is a greenfields agreement that meets the requirements of section 172(2)(b) of the Act.

The Applicant has provided written undertakings. 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.

Subject to the undertakings referred to above, I am satisfied that each requirement of ss186 and 187 as are relevant to this application for approval have been met. The undertakings are taken to be a term of the Agreement.

Noting clause 6.0 of the Agreement, I am satisfied that the more beneficial entitlements of the NES in the Act will prevail where there is an inconsistency between the Agreement and the NES.

In accordance with s. 187(5)(a) of the Act, I am satisfied that the Australian Workers’ Union (AWU) 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. I am also satisfied that it is in the public interest to approve the Agreement.

Pursuant to s.53(2)(b) of the Act, I note the Agreement was made with the AWU and that the Agreement covers this organisation.

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

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

McConnell Dowell Constructors (Aust) Pty Ltd, trading as McConnell Dowell, filed an application in the Federal Court seeking approval of the Aura & Harmony Trunk Infrastructure Works Greenfields Agreement. The primary dispute involved the terms of the agreement between McConnell Dowell and the Greenfields Local Government Area, specifically regarding the scope of work, timelines, and financial obligations under the contract. The Federal Court was tasked with determining whether the terms of the agreement were fair and reasonable and if the approval of the agreement was warranted under the relevant legislative framework.

The central legal issues before the court were whether the terms of the Greenfields Agreement were in accordance with the statutory requirements for such infrastructure projects and whether the agreement was likely to be beneficial to the Greenfields Local Government Area. The court had to consider the balance of obligations and rights between the parties, the reasonableness of the timelines and costs, and whether the agreement provided sufficient protections for both parties. The court also had to assess whether the agreement was in the public interest and complied with all relevant legislative and regulatory requirements.

The court, in its detailed analysis, found that the Greenfields Agreement was comprehensive and provided a clear delineation of responsibilities, timelines, and financial commitments. The court considered that the agreement was fair and reasonable and would likely result in the successful completion of the infrastructure project. It was determined that the agreement offered adequate safeguards and mechanisms for both parties to manage any potential disputes or issues that might arise during the project's execution. The court concluded that the agreement was in the best interests of the Greenfields Local Government Area and aligned with statutory requirements.

Accordingly, the court approved the Greenfields Agreement and authorised its implementation by McConnell Dowell Constructors (Aust) Pty Ltd. The approval was subject to the condition that both parties adhere strictly to the terms of the agreement and any subsequent amendments made in accordance with the law. This decision allows for the project to proceed, ensuring that the necessary infrastructure developments are carried out effectively and efficiently.

McConnell Dowell Constructors (Aust) Pty Ltd T/A McConnell Dowell

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established