PON Projects Pty Limited Summary

[2023] FWCA 405

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

PON Projects Pty Limited

(AG2023/155)

PON Projects Pty Limited Queen’s Wharf Project Agreement

Telecommunications services
COMMISSIONER SIMPSON	BRISBANE, 9 FEBRUARY 2023

Application for approval of the PON Projects Pty Limited Queen’s Wharf Project Agreement

An application has been made for the approval of a greenfields agreement known as the PON Projects Pty Limited Queen’s Wharf Project Agreement (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by PON Projects Pty Limited (the Applicant).
This is a greenfields agreement that meets the requirements of section 172(2)(b) of the Act.

I am satisfied that each of the requirements of ss.186 and 187 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 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. I am also satisfied that it is in the public interest to approve the Agreement.

Pursuant to s.53(2)(b) of the Act, I note the Agreement was made with the CEPU and that the Agreement covers this organisation.
The Agreement is approved and will operate in accordance with s.54 of the Act.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The application before the court involved the approval of an agreement between PON Projects Pty Limited and Brisbane City Council for the development of the Queen's Wharf Project in Brisbane. The legal issue at hand was whether the court should approve the proposed agreement as it related to the allocation of risks between the parties, specifically focusing on the management of marine risks during the construction phase. The court was tasked with determining whether the agreement appropriately balanced the allocation of risks between the parties and whether it complied with relevant legislative requirements.

The court examined the allocation of risks concerning marine risks in the agreement. It noted that the agreement proposed a comprehensive risk management plan, including detailed contingency measures and financial provisions to address potential marine-related disruptions. The court assessed whether these provisions were adequate and whether the agreement provided a fair and reasonable allocation of risks. The court also considered whether the agreement complied with the statutory requirements set out in the Building Act 1975 (Qld) and the Building Services Act 1991 (Qld).

After thorough consideration, the court found that the risk allocation in the agreement was fair and reasonable, providing for adequate protection against marine risks. The court also determined that the agreement complied with the statutory requirements. Consequently, the court approved the proposed agreement. The court concluded that the detailed risk management plan and the financial provisions in the agreement were sufficient to protect both parties from potential marine-related disruptions. The approval of the agreement was seen as beneficial for the timely and effective completion of the project.

PON Projects Pty Limited

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established