Spark NEL DC Workforce Pty Ltd - [2023] FWCA 2079

[2023] FWCA 2079

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Spark NEL DC Workforce Pty Ltd

(AG2023/1621)

SPARK NEL DC WORKFORCE PTY LIMITED (TUNNELLING) GREENFIELDS AGREEMENT 2023

Building, metal and civil construction industries
DEPUTY PRESIDENT MILLHOUSE	MELBOURNE, 6 JULY 2023

Application for approval of the Spark NEL DC Workforce Pty Limited (Tunnelling) Greenfields Agreement 2023

Spark NEL DC Workforce Pty Ltd (Spark Workforce) has applied pursuant to s 185 of the Fair Work Act 2009 (Cth) for approval of an enterprise agreement known as the Spark NEL DC Workforce Pty Limited (Tunnelling) Greenfields Agreement 2023 (Proposed Agreement). The Proposed Agreement has been made between Spark Workforce and the Australian Workers Union (AWU). The Proposed Agreement is said to relate to a “genuine new enterprise” that Spark Workforce was establishing or proposed to establish for the supply of “blue collar” labour to perform certain tunnelling works on the North East Link Project.

The AWU supports the application for approval of the Proposed Agreement.

On 30 May 2023, the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) requested to be heard in relation to the application. The request was made on the basis that the Proposed Agreement does not appear to relate to a genuine new enterprise that Spark Workforce is establishing or proposing to establish. On 8 June 2023, following receipt of submissions from the parties, I determined to inform myself pursuant to s 590(1) of the Act and granted the CFMMEU an opportunity to be heard.

The matter proceeded to a hearing before me on 20 June 2023.

The evidence establishes, on the balance of probabilities, that (a) the Proposed Agreement relates to a genuine new enterprise that Spark Workforce is establishing, (b) Spark Workforce has not employed any of the persons who will be necessary for the normal conduct of that enterprise and will be covered by the Proposed Agreement, and (c) it is in the public interest to approve the Proposed Agreement.

Context

The North East Link Project (Project) is a large civil infrastructure project in Victoria. It involves completing a “missing link” in Melbourne’s orbital freeway between an upgraded Eastern Freeway and the M80 Ring Road. It comprises of five sub-projects: an early works package, the primary package, two secondary packages and a tolling service package.

A special purpose vehicle, Spark North East Link Pty Ltd (Project Co) entered into a project deed with the State of Victoria and the North East Link State Tolling Corporation, under which Project Co agreed to part-finance and undertake the design and construction of the primary package, and then provide operations and maintenance services for a 25 year term.[1]

In December 2021, by way of a design and construction contract arrangement with Project Co, Spark Consortium Joint Venture (Spark CJV) was appointed as the design and construction contractor for the primary package. The primary package of works comprises of, in summary, tunnelling and associated civil and surface construction works. Spark CJV is not required to finance, or operate…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Spark NEL DC Workforce Pty Ltd

Details

AGLC: Spark NEL DC Workforce Pty Ltd [2023] FWCA 2079
Case: [2023] FWCA 2079
Decision Date: 6 JULY 2023

CaseChat Overview and Summary

The matter under consideration involved Spark NEL DC Workforce Pty Ltd, who sought approval for a Greenfields Agreement 2023 concerning the tunnelling project. The application was heard in the Fair Work Commission, where the primary legal issue was whether the proposed agreement complied with the relevant legislative requirements and provided fair terms for the employees involved.

The court examined several aspects of the agreement, including the provisions related to wage rates, working hours, leave entitlements, and dispute resolution mechanisms. It was crucial to ensure that the agreement met the standards set by the Fair Work Act 2009 and did not undermine the rights and protections afforded to employees under the Act. The court also considered whether the agreement had been negotiated in good faith and whether it provided an efficient, productive, and flexible workplace.

In its decision, the Fair Work Commission found that the proposed agreement met the necessary legislative requirements and provided fair terms for the employees. The court highlighted that the agreement contained provisions that were consistent with the objectives of the Fair Work Act, including promoting higher wages, better conditions, and facilitating the resolution of workplace disputes. The Commission determined that the agreement was an appropriate mechanism for governing the employment relationship between the parties and approved the application for its implementation.

Orders