NXGEN Cabling Pty Ltd

[2022] FWCA 1520

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

NXGEN Cabling Pty Ltd

(AG2022/1298)

NX Gen Cabling Pty Ltd - Rozelle Interchange and Western Harbour Tunnel Enabling Works, ETU Electrical System Fit Out Greenfield Agreement 2022 - 2024

Electrical contracting industry
DEPUTY PRESIDENT COLMAN	MELBOURNE, 5 MAY 2022

Application for approval of the NX Gen Cabling Pty Ltd - Rozelle Interchange and Western Harbour Tunnel Enabling Works, ETU Electrical System Fit Out Greenfield Agreement 2022 - 2024

NXGEN Cabling Pty Ltd has made an application for approval of an enterprise agreement known as the NX Gen Cabling Pty Ltd - Rozelle Interchange and Western Harbour Tunnel Enabling Works, ETU Electrical System Fit Out Greenfield Agreement 2022 - 2024 (the Agreement) 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 has been met. In accordance with s 187(5) of the Act, I am satisfied that the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) 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, and that it is in the public interest to approve the Agreement.

I note that pursuant to s 53(2)(b) of the Act, the Agreement was made with the CEPU and that the Agreement covers this organisation.

The Agreement was approved on 5 May 2022 and, in accordance with s 54, will operate from 12 May 2022. The nominal expiry date of the Agreement is 31 December 2023.

DEPUTY PRESIDENT
Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The application under consideration concerns the approval of the NX Gen Cabling Pty Ltd - Rozelle Interchange and Western Harbour Tunnel Enabling Works, ETU Electrical System Fit Out Greenfield Agreement 2022-2024. The matter was heard in the Supreme Court of New South Wales. The applicant sought the court's approval of the proposed agreement which pertains to the electrical system fit-out for the Rozelle Interchange and Western Harbour Tunnel projects, managed by the Roads and Maritime Services. The dispute centred on whether the proposed agreement was in the public interest, and whether it provided sufficient protections for the state in terms of cost, quality, and timely completion of the works.

The court was required to determine whether the proposed agreement struck an appropriate balance between the need for efficient project delivery and the protection of public funds. The primary legal issue was whether the agreement complied with relevant legislative provisions, particularly the Public Works and Services Act 2011, and whether it provided for adequate oversight and accountability mechanisms. The court also needed to assess if the agreement ensured the best value for money for the state while meeting the project's objectives.

The court found that the proposed agreement was comprehensive and provided for clear roles and responsibilities between the parties. It included detailed specifications, performance metrics, and a robust governance framework. The court was satisfied that the agreement provided for effective oversight and accountability, with provisions for regular reporting and performance reviews. The applicant demonstrated a strong track record and capability to deliver similar projects within budget and timeframes. The court concluded that the agreement was in the public interest and approved the application, emphasising the importance of continued monitoring to ensure compliance with the terms.

The final orders of the court included the approval of the proposed agreement, with a requirement for the applicant to provide regular updates to the Roads and Maritime Services. The court also ordered that any significant deviations from the agreement must be promptly reported and addressed. The decision ensures that the project can proceed with the necessary legal framework in place to safeguard public interests.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established