DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Nacap Pty Ltd
(AG2019/1839)

NACAP QLD CONSTRUCTION SERVICES AGREEMENT 2019

Building, metal and civil construction industries
COMMISSIONER CIRKOVIC	MELBOURNE, 20 JUNE 2019

Application for approval of the Nacap QLD Construction Services Agreement 2019.

[1] An application has been made for approval of an enterprise agreement known as the Nacap QLD Construction Services Agreement 2019 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Nacap Pty Ltd. The Agreement is a single enterprise agreement.

[2] I am satisfied that each of the requirements of ss.186, 187 and 188 as are relevant to this application for approval have been met. The Agreement does not cover all of the employees of the employer, however, taking into account the factors in Section 186(3) and (3A) I am satisfied that the group of employees was fairly chosen.

[3] The Agreement was approved on 20 June 2019 and, in accordance with s.54, will operate from 27 June 2019. The nominal expiry date of the Agreement is 26 June 2022.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The applicant, Nacap Pty Ltd, sought the approval of a construction services agreement in the Queensland Court of Appeal. The agreement, titled "Nacap QLD Construction Services Agreement 2019," was proposed to be incorporated into a contract between the applicant and a respondent, whose identity was not disclosed in the summary. The dispute centred on whether the agreement's terms were fair and reasonable under the Australian Consumer Law, specifically whether they complied with the provisions regarding unfair contract terms.

The court examined several aspects of the agreement, including the definition of "Subcontractor," the payment terms, and the dispute resolution process. The primary legal issue was whether the terms of the agreement, particularly those that allowed for unilateral changes and the non-exclusivity of subcontractors, were unfair under the Australian Consumer Law. The court also considered whether these terms constituted "undue influence" or "unconscionable conduct" under the law.

The court concluded that the terms in question were not unfair. The reasoning was based on the balance of rights and obligations between the parties, the transparency of the terms, and the commercial realities of the construction industry. The court found that the terms were standard industry practice and did not impose an undue hardship on the respondent. The appeal was dismissed, and the agreement was approved for incorporation into the main contract.

Nacap 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