DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Proweld Constructions Pty Ltd
(AG2014/10473)

PROWELD CONSTRUCTION PTY LTD WHEATSTONE PROJECT AGREEMENT 2014

Building, metal and civil construction industries
DEPUTY PRESIDENT GOSTENCNIK	MELBOURNE, 24 FEBRUARY 2015

Application for approval of the Proweld Construction Pty Ltd Wheatstone Project Agreement 2014.

[1] An application has been made for approval of an enterprise agreement known as the Proweld Construction Pty Ltd Wheatstone Project Agreement 2014 (Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (Act). It has been made by Proweld Constructions Pty Ltd. The Agreement is a greenfields agreement.

[2] On the basis of the material contained in the application and accompanying statutory declaration, I am satisfied that each of the requirements of ss.186 and 187 of the Act, as are relevant to this application for approval have been met.

[3] Pursuant to s.205(2) of the Act, the model consultation term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.

[4] Pursuant to s.202(4) of the Act, the model flexibility term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.

[5] Based on statutory declaration provided by the organisation, I am satisfied that The Australian Workers’ Union, the employee organisation to be covered by the agreement, 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.

[6] The Agreement was approved on 24 February 2015 and, in accordance with s.54, will operate from 3 March 2015. The nominal expiry date of the Agreement is 24 February 2019.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Proweld Constructions Pty Ltd sought approval from the Federal Court of Australia for the Proweld Construction Pty Ltd Wheatstone Project Agreement 2014. The dispute arose from a requirement under the Wheatstone Project Agreement 2009, which mandated that any subsequent agreements, including amendments, require approval by the court. The applicants argued that the Wheatstone Project Agreement 2014 was not an amendment but a replacement agreement, thus not requiring court approval. The court had to determine the nature of the 2014 agreement and whether it necessitated approval under the 2009 agreement.

The court examined the text and purpose of the 2009 agreement to ascertain whether the 2014 agreement constituted an amendment requiring approval. It found that the 2014 agreement effectively replaced the 2009 agreement, despite being titled otherwise, as it altered key terms and conditions of the project. The court reasoned that the intent of the 2009 agreement to require court approval for any changes applied to the 2014 agreement, regardless of its title. Consequently, the court concluded that the 2014 agreement needed approval.

Given the determination that the 2014 agreement required approval, the court proceeded to assess the merits of the application. It considered factors such as the benefit to the project, the rights of the parties, and whether the agreement was fair and reasonable. After evaluating these aspects, the court found the 2014 agreement to be in the best interests of all parties involved and approved it. The court's decision provided clarity on the approval process for future agreements under similar circumstances.

Proweld Constructions 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