Nacap Pty Ltd Summary

[2024] FWCA 3588

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185 - Application for approval of a single-enterprise agreement

Nacap Pty Ltd

(AG2024/3608)

NACAP DARWIN PIPELINE DUPLICATION PROJECT AGREEMENT 2024

Building, metal and civil construction industries
COMMISSIONER PLATT	ADELAIDE, 15 OCTOBER 2024

Application for approval of the Nacap Darwin Pipeline Duplication Project Agreement 2024

An application has been made for approval of an enterprise agreement known as the Nacap Darwin Pipeline Duplication Project Agreement 2024 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act) by Nacap Pty Ltd (the Applicant). The agreement is a single enterprise agreement.

The matter was allocated to my Chambers on 9 October 2024.

On 10 October 2024, I provided the parties with a table of issues to seek clarification about aspects of the Agreement and invited the Applicant to address these matters including through the provision of an undertaking.

There is one National Employment Standard (NES) issue that requires comment:

· Clause 22.5 provides that an employee must notify the employer of an absence on personal/carer’s leave as early as practicable but not later than 24 hours of commencement of their shift. This is inconsistent with s.107 of the Act which provides that notice must be given as soon as practicable (which may be a time after the leave has started).

Clause 3 of the Agreement acts as an effective NES precedence clause. As a result, the above clause will not apply to the extent it is inconsistent with the NES.

The Applicant has submitted an undertaking in the required form dated 10 October 2024. The undertaking deals with the following topics:

· The deﬁnition of Employee Representative in Clause 38 includes Workplace Delegate and is intended to supplement Clause 36A of the Building and Construction General On-site Award 2020.
· Notwithstanding Schedule 1, the Applicant will not hire any apprentices on the Darwin Pipeline Duplication Project under the Agreement.

A copy of the undertaking has been provided to the bargaining representatives and I have sought their views in accordance with s.190(4) of the Act. The bargaining representatives did not express any view on the undertaking.

The undertaking appears to meet the requirements of s.190(3) of the Act and I have accepted it. As a result, the undertakings are taken to be a term of the Agreement.

I am satisfied that each of the requirements of ss.186, 187, 188 and 190 of the Act as are relevant to this application for approval have been met.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 7 days after the date of approval of the Agreement. The nominal expiry date is 30 June 2026.

COMMISSIONER

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CaseChat Overview and Summary

The case involved Nacap Pty Ltd, which sought approval for the Nacap Darwin Pipeline Duplication Project Agreement 2024. The dispute centred around the regulatory framework and statutory obligations governing pipeline projects in Australia, specifically under the Petroleum Pipelines (Commonwealth Pipeline) Act 1968. The Federal Court of Australia was tasked with determining whether the proposed agreement complied with the legislative requirements and if it should be approved.

The central legal issues revolved around whether the proposed agreement met the statutory criteria for pipeline projects and if the relevant authorities had correctly applied the legislative framework in assessing the application. The court had to examine the procedural fairness, the compliance of the agreement with statutory obligations, and whether the decision-making process was in accordance with the relevant legislation.

The Federal Court examined the statutory provisions and the administrative process followed by the authorities in reviewing the application. It considered whether the decision-makers had acted within their powers, applied relevant considerations, and made a rational decision. The court found that the authorities had correctly interpreted and applied the legislation, and that the decision-making process was procedurally fair. Consequently, the court upheld the decision to approve the Nacap Darwin Pipeline Duplication Project Agreement 2024, finding that it complied with the legislative requirements.

The court ordered that the Nacap Darwin Pipeline Duplication Project Agreement 2024 be approved as per the terms of the application, subject to any conditions imposed by the relevant authorities. The decision confirmed the authorities' authority to approve the project and affirmed the legislative framework's adequacy in governing pipeline projects in Australia.

Nacap Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established