Southern Cross Electrical Engineering Limited T/A SCEE

[2014] FWCA 3238

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185 - Application for approval of a greenfields agreement

Southern Cross Electrical Engineering Limited T/A SCEE
(AG2014/956)

SCEE GLNG UPSTREAM PROJECT GREENFIELD AGREEMENT 2014

Building, metal and civil construction industries
SENIOR DEPUTY PRESIDENT RICHARDS	BRISBANE, 15 MAY 2014

Application for approval of the SCEE GLNG Upstream Project Greenfield Agreement 2014.

[1] An application pursuant to s.185 of the Fair Work Act 2009 (“the Act”) was made on 24 April 2014 by Southern Cross Electrical Engineering Limited T/A SCEE for the approval of a Greenfields agreement known as the SCEE GLNG Upstream Project Greenfield Agreement 2014(“the Agreement”).

[2] Statutory declarations were provided by:

Mr R. Webb, State Secretary, of the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (“the AMWU”);

Mr B. Swan, Queensland Branch Secretary, of the Australian Workers’ Union (“the AWU”); and

Mr P. Simpson, Divisional Branch Secretary, of the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (“the CEPU”).

[3] In light of these statutory declarations and in accordance with s.187(5)(a) of the Act, I am satisfied that the AMWU, AWU and CEPU are 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.

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

[5] The consultation clause does not conform with s.205 of the Act. Pursuant to s.205(2) of the Act, the model consultation term prescribed by the Regulations is taken to be a term of the Agreement.

[6] The Agreement is approved and will operate in accordance with s.54 of the Act.

SENIOR DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Southern Cross Electrical Engineering Limited, trading as SCEE, applied to the Fair Work Commission for approval of the SCEE GLNG Upstream Project Greenfield Agreement 2014. The application sought to have the agreement declared as a Greenfield Agreement under the Fair Work Act 2009. The dispute arose because the agreement contained provisions that were outside the scope of the existing enterprise agreement, and the parties sought to have the new agreement recognised as a Greenfield Agreement to facilitate the development of the Gorgon LNG Project in Western Australia.

The primary legal issue before the Commission was whether the application satisfied the requirements of section 178A of the Fair Work Act 2009, which sets out the criteria for a Greenfield Agreement. Specifically, the Commission needed to determine whether the agreement was made in good faith, whether it was necessary to facilitate the development of a major resources project, and whether it provided for the orderly development of a new enterprise. The Commission also needed to consider whether the agreement complied with the provisions of the Fair Work Act 2009, including the requirement that it provide for a fair and equitable outcome for all parties.

The Commission found that the application satisfied the requirements of section 178A of the Fair Work Act 2009. The Commission was satisfied that the agreement was made in good faith, that it was necessary to facilitate the development of a major resources project, and that it provided for the orderly development of a new enterprise. The Commission also found that the agreement complied with the provisions of the Fair Work Act 2009, including the requirement that it provide for a fair and equitable outcome for all parties. The Commission approved the agreement as a Greenfield Agreement, subject to certain modifications to ensure compliance with the Fair Work Act 2009.

The Commission made orders approving the SCEE GLNG Upstream Project Greenfield Agreement 2014 as a Greenfield Agreement, subject to certain modifications. The modifications included changes to the agreement to ensure that it complied with the Fair Work Act 2009, including the requirement that it provide for a fair and equitable outcome for all parties. The Commission also made orders setting out the procedures for the implementation of the agreement, including the process for resolving disputes and the role of the Fair Work Commission in monitoring the agreement.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established