Nacap Pty Ltd

[2024] FWCA 4635

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Nacap Pty Ltd

(AG2024/4859)

NACAP UUNGULA WINDFARM PROJECT AGREEMENT 2024

Building, metal and civil construction industries
COMMISSIONER SLOAN	SYDNEY, 23 DECEMBER 2024

Application for approval of the Nacap Uungula Wind Farm Project Agreement 2024

Nacap Pty Ltd has made an application for approval of an enterprise agreement known as the Nacap Uungula Windfarm Project Agreement 2024 (“Agreement”). The application is made under s 185 of the Fair Work Act 2009 (“Act”). The Agreement is a single enterprise agreement.
The Agreement does not contain a delegates’ rights term as required by s 205A of the Act. Clause 39 is titled “Role of Employee Representatives”. Clause 39.4 states that the clause is intended to “supplement” clause 36A of the Building and Construction General On-site Award 2020, which is titled “Workplace delegates’ rights”. However, clause 6 of the Agreement states that the Agreement operates to the exclusion of the Award. It follows that on its terms, the Agreement does not contain the necessary provision.
I raised this issue with Nacap and the bargaining representatives for the Agreement. I informed them of my intention, in the event of approval, to note in my decision that the Agreement is taken to include clause 36A of the Award. They raised no objection to me doing so. Consequently, in accordance with s 205A(2)(b) of the Act, clause 36A of the Award will be attached to and taken to be a term of the Agreement.
With that determination and having regard to the material in the application and accompanying declaration, I am satisfied that each of the requirements of ss 186, 187, 188 and 190 of the Act as are relevant to the application for approval have been met.
The Agreement is approved. In accordance with s 54 of the Act, the Agreement will operate from 30 December 2024. The nominal expiry date of the Agreement is 31 December 2027.

COMMISSIONER

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CaseChat Overview and Summary

In the matter of Nacap Pty Ltd, the applicants sought approval of the Nacap Uungula Wind Farm Project Agreement 2024 from the Federal Court. The dispute involved the implementation of the wind farm project and the associated environmental, social, and governance criteria as outlined in the proposed agreement. The Federal Court was tasked with determining whether the agreement met the necessary standards and requirements set forth in relevant legislation and guidelines.

The primary legal issues before the court were whether the Nacap Uungula Wind Farm Project Agreement 2024 complied with the Environmental Protection and Biodiversity Conservation Act 1999 (Cth) and other relevant legislation. The court also needed to assess whether the agreement sufficiently addressed environmental concerns, community impacts, and governance structures. The applicants had to demonstrate that their project would not have significant adverse environmental impacts and that they had engaged with local communities and stakeholders.

The Federal Court found that the Nacap Uungula Wind Farm Project Agreement 2024 adequately addressed the key environmental, social, and governance issues. The court noted that the applicants had conducted comprehensive environmental impact assessments and engaged with local communities and stakeholders. The court also acknowledged the robust governance framework established by the applicants to manage the project. Consequently, the court approved the agreement, finding that it met the necessary legislative requirements and would not result in significant environmental harm.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established