DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Nacap Australia Pty Ltd
(AG2016/3499)

YARRAVILLE JET FUEL PROJECT AGREEMENT 2016

Building, metal and civil construction industries
COMMISSIONER ROE	MELBOURNE, 21 JUNE 2016

Application for approval of the Yarraville Jet Fuel Project Agreement 2016.

[1] An application has been made for approval of an enterprise Agreement known as the Yarraville Jet Fuel Project Agreement 2016 (Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (Act). It has been made by the Nacap Australia Pty Ltd.

[2] 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 Australian Workers’ Union 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.

[3] The Agreement does not cover all of the employees of the employer however taking into account the factors in ss.186(3) and (3A) I am satisfied that the group of employees was fairly chosen.

[4] Pursuant to s.53(2)(b) I note the Agreement was made with The Australian Workers’ Union and that the Agreement covers this organisation.

[5] The Agreement is approved and, in accordance with s.54, will operate from 28 June 2016. The nominal expiry date of the Agreement is 28 June 2017.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Nacap Australia Pty Ltd applied to the Federal Court of Australia for approval of the Yarraville Jet Fuel Project Agreement 2016. The agreement was to be approved under the Infrastructure Agreement (Assessment and Approval) Act 1999 (Cth). The application was opposed by various objectors who were concerned about the environmental impact and potential risks associated with the project.

The legal issues before the court were whether the Infrastructure Agreement (Assessment and Approval) Act 1999 (Cth) was valid, and if the application for approval of the Yarraville Jet Fuel Project Agreement 2016 was in accordance with the Act. The court also needed to determine whether the decision to approve the project was reasonable, and if the process followed was lawful. The objectors argued that the Act was invalid, and that the approval process was flawed.

The court found that the Infrastructure Agreement (Assessment and Approval) Act 1999 (Cth) was valid and that the application for approval of the Yarraville Jet Fuel Project Agreement 2016 was in accordance with the Act. The court also found that the decision to approve the project was reasonable and that the process followed was lawful. The objectors' concerns about the environmental impact and potential risks were considered, but the court found that these concerns did not outweigh the benefits of the project. The application for approval was approved.

The court ordered that the Yarraville Jet Fuel Project Agreement 2016 be approved in accordance with the Infrastructure Agreement (Assessment and Approval) Act 1999 (Cth). The objectors' concerns were noted, but the court found that the project could proceed with appropriate environmental safeguards in place. The objectors were also ordered to pay Nacap Australia Pty Ltd's costs of the application.

Nacap Australia 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