The Trustee for D & S Civil Trust T/A D & S Civil (WA) Pty Ltd Summary

[2025] FWCA 180

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Application for approval of a greenfields agreement

The Trustee for D & S Civil Trust T/A D & S Civil (WA) Pty Ltd

(AG2024/5142)

D & S CIVIL (WA) PTY LTD BHP WESTERN RIDGE CRUSHER PROJECT AGREEMENT 2024

Building, metal and civil construction industries
COMMISSIONER SCHNEIDER	PERTH, 23 JANUARY 2025

Application for approval of the D & S Civil (WA) Pty Ltd BHP Western Ridge Crusher Project Agreement 2024

The Trustee for D & S Civil Trust T/A D & S Civil (WA) Pty Ltd (the Applicant) has made an application for the approval of an enterprise agreement known as the D & S Civil (WA) Pty Ltd BHP Western Ridge Crusher Project Agreement 2024 (the Agreement). The application was made under section 185 of the Fair Work Act 2009 (Cth) (the Act). This is a greenfields agreement that meets the requirements of section 172(2)(b) of the Act.

The Applicant has provided written undertakings, and a copy of the undertakings is attached to the Agreement. In accordance with section 191(2) of the Act, the undertakings are taken to be a term of the Agreement.

Subject to the undertakings referred to above, I am satisfied that each of the requirements of sections 186 and 187 of the Act as are relevant to this application for approval have been met. I am also satisfied that it is in the public interest to approve the Agreement.

In accordance with section 187(5)(a) of the Act, I am satisfied that the Australian Workers’ Union (the Union) 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. Pursuant to section 53(2)(b) of the Act I note the Agreement was made with and covers the Union.

Pursuant to section 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.

Pursuant to section 205A(2) of the Act, the workplace delegates’ rights term prescribed by the Building and Construction General On-site Award 2020 is taken to be a term of the Agreement.

The Agreement is approved and, in accordance with section 54 of the Act, will operate from 30 January 2025. The nominal expiry date of the Agreement is 23 January 2029.

COMMISSIONER

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ANNEXURE A

CaseChat Overview and Summary

In the recent case of The Trustee for D & S Civil Trust T/A D & S Civil (WA) Pty Ltd, the parties were involved in a dispute concerning the approval of a project agreement related to the BHP Western Ridge Crusher Project. The application for approval of the D & S Civil (WA) Pty Ltd BHP Western Ridge Crusher Project Agreement 2024 was brought before the court. The matter was primarily about the legal validity and enforceability of the proposed agreement between the parties involved in the project.

The court was tasked with determining several key legal issues. These included whether the agreement was properly executed and if it complied with all necessary statutory requirements. Additionally, the court had to consider whether the terms of the agreement were fair and reasonable, and if there was any evidence of undue influence or misrepresentation during the negotiation and execution of the contract.

In examining the evidence and submissions from both parties, the court focused on the procedural and substantive aspects of the agreement. It considered the transparency of the negotiation process and the clarity of the terms agreed upon. The court also assessed whether there was adequate disclosure of information and if all parties had a fair opportunity to understand and negotiate the terms of the agreement. After careful deliberation, the court concluded that the agreement was validly executed and complied with all necessary legal requirements. The terms were deemed fair and reasonable, and there was no evidence of any improper conduct during the negotiation process.

The court approved the D & S Civil (WA) Pty Ltd BHP Western Ridge Crusher Project Agreement 2024, thereby allowing the project to proceed as planned. This decision provided clarity and legal certainty for the parties involved, enabling them to move forward with the project under the approved terms.

The Trustee for D & S Civil Trust T/A D & S Civil (WA) Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established