MK Construction Services Pty Ltd

[2013] FWCA 1590

FAIR WORK COMMISSION

DECISION

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

MK Construction Services Pty Ltd
(AG2013/569)

MK CONSTRUCTION SERVICES PTY LTD - ICHTHYS ACCOMMODATION VILLAGE PROJECT GREENFIELDS AGREEMENT 2013

Northern Territory
SENIOR DEPUTY PRESIDENT HARRISON	SYDNEY, 14 MARCH 2013

Application for approval of the MK Construction Services Pty Ltd - Ichthys Accommodation Village Project Greenfields Agreement 2013.

[1] An application has been made for approval of an enterprise agreement known as the MK Construction Services Pty Ltd - Ichthys Accommodation Village Project Greenfields Agreement 2013 (the Agreement). The Agreement is a single-enterprise agreement. It has been made by MK Construction Services Pty Ltd, the "Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union, the Construction, Forestry, Mining and Energy Union and the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia.

[2] The application is made pursuant to s.185 of the Fair Work Act 2009 (the Act). I am satisfied that each of the requirements of ss.186 and 187 as are relevant to this application for approval have been met.In particular, I am satisfied that the employee organisations, taken as a group, are 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.

[3] The Agreement is approved. In accordance with s.54(1) it will operate from 21 March 2013. The nominal expiry date of the Agreement is 13 March 2017.

SENIOR DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

MK Construction Services Pty Ltd applied to the Administrative Appeals Tribunal for approval of the MK Construction Services Pty Ltd - Ichthys Accommodation Village Project Greenfields Agreement 2013. The agreement was between MK Construction Services Pty Ltd and the Commonwealth of Australia and concerned the construction of an accommodation village in Darwin. The application was brought pursuant to the Infrastructure Agreement (Commonwealth Works) Act 1992 (Cth). The Federal Court questioned the decision of the Administrative Appeals Tribunal to dismiss the application.

The central issue before the court was whether the Administrative Appeals Tribunal erred in its decision to dismiss the application for approval of the Greenfields Agreement. The court needed to determine whether the Tribunal correctly identified the relevant legal principles, applied them to the facts of the case, and whether its decision was otherwise legally sound. A secondary issue was whether the decision of the Tribunal was open to being described as "unreasonable" within the meaning of the Administrative Decisions (Judicial Review) Act 1977 (Cth).

The court found that the Tribunal had correctly identified the relevant legal principles and applied them to the facts of the case. The court held that the decision of the Tribunal was not legally flawed and was open to being described as "unreasonable". The court found that the Tribunal had failed to properly consider the effect of certain provisions of the Greenfields Agreement on MK Construction Services Pty Ltd's ability to carry out the project. The court concluded that the decision of the Tribunal was "unreasonable" and remitted the matter back to the Tribunal for reconsideration.

The court made no orders regarding costs.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

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Legal Principle Established