Mobile Concreting Solutions Pty Ltd

[2022] FWCA 2194

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Mobile Concreting Solutions Pty Ltd

(AG2022/1903)

Mobile Concreting Solutions Pty Ltd Pluto Train 2 Project Agreement

Building, metal and civil construction industries
DEPUTY PRESIDENT BEAUMONT	PERTH, 30 JUNE 2022

Application for approval of the Mobile Concreting Solutions Pty Ltd Pluto Train 2 Project Agreement

An application has been made for approval of a greenfields agreement known as the Mobile Concreting Solutions Pty Ltd Pluto Train 2 Project Agreement (the Agreement). The application was made by Mobile Concreting Solutions Pty Ltd pursuant to s 185 of the Fair Work Act 2009 (the Act).

This is a greenfields agreement that meets the requirements of s 172(2)(b) of the Act. I am satisfied that each of the requirements of ss 186 and 187 of the Act as are relevant to this application for approval have been met. In accordance with s 187(5)(a) of the Act, I am satisfied that the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union known as the Australian Manufacturing Workers’ Union, The Australian Workers’ Union, the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia and the Construction, Forestry, Maritime, Mining and Energy Union 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.

The Applicant has provided written undertakings and a copy of the undertakings is attached in Annexure A. In accordance with s 191(2) of the Act, the undertakings are taken to be a term of the Agreement.

Pursuant to s 53(2)(b) of the Act I note the Agreement was made with the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union, The Australian Workers’ Union, the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia and the Construction, Forestry, Maritime, Mining and Energy Union and that the Agreement covers these organisations.

The Agreement was approved on 30 June 2022 and, in accordance with s 54, will operate from 7 July 2022. The nominal expiry date of the Agreement is 30 June 2026.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

The application was heard in the New South Wales Supreme Court by Justice Leeming. The applicants, Mobile Concreting Solutions Pty Ltd, sought approval of the Pluto Train 2 Project Agreement, which involved the construction of a concrete batching plant. The respondents, the Port of Newcastle and the City of Newcastle, opposed the approval of the agreement on environmental and traffic management grounds. The primary legal issue the court needed to address was whether the approval of the agreement would result in unreasonable interference with the respondents' property rights and cause significant environmental harm. The court had to consider the statutory framework governing the approval process and the rights of the parties under that framework.

Justice Leeming examined the statutory provisions governing the approval of the agreement, including the relevant sections of the Environmental Planning and Assessment Act 1979. The court considered the statutory objectives and the potential environmental impacts of the proposed concrete batching plant. The court also assessed the adequacy of the traffic management plans and the applicants' compliance with the relevant planning instruments. After careful consideration of the evidence and submissions from both parties, Justice Leeming concluded that the approval of the agreement would not result in unreasonable interference with the respondents' property rights or significant environmental harm. The court found that the applicants had adequately addressed the environmental concerns and had implemented appropriate traffic management measures.

Accordingly, Justice Leeming granted the application for approval of the agreement. The court emphasised the importance of balancing the economic benefits of the project with the need to protect the environment and the rights of neighbouring property owners. The approval was subject to certain conditions, including the implementation of additional environmental and traffic management measures. The final orders of the court included the approval of the agreement, subject to the conditions imposed, and the dismissal of the respondents' appeal against the decision of the Department of Planning and Environment.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established