The trustee for the Giovenco/Insulations JV Trust Summary

[2014] FWCA 3377

FAIR WORK COMMISSION

DECISION

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

The trustee for the Giovenco/Insulations JV Trust
(AG2014/936)

THE TRUSTEE FOR THE GIOVENCO/INSULATIONS INTERNATIONAL JV TRUST WHEATSTONE PROJECT AGREEMENT 2013

Building, metal and civil construction industries
COMMISSIONER WILLIAMS	PERTH, 21 MAY 2014

Application for approval of The trustee for the Giovenco/Insulations International JV Trust Wheatstone Project Agreement 2013.

[1] An application has been made for approval of an enterprise agreement known as The trustee for the Giovenco/Insulations International JV Trust Wheatstone Project Agreement 2013 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by the trustee for the Giovenco/Insulations JV Trust. The Agreement is a greenfields agreement.

[2] 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.

[3] The Agreement does not contain a flexibility term. Pursuant to s.202(4) of the Act, the model flexibility term prescribed by the Fair Work Regulations 2009 1 is taken to be a term of the Agreement.

[4] The Agreement does not contain a consultation term. Pursuant to s.205(2) of the Act, the model consultation term prescribed by the Fair Work Regulations 2009 2 is taken to be a term of the Agreement.

[5] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 28 May 2014. The nominal expiry date of the Agreement is 27 May 2018.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

1 Section 2.08 and Schedule 2.2 of the Fair Work Regulations 2009.

2 Section 2.09 and Schedule 2.2 of the Fair Work Regulations 2009.

CaseChat Overview and Summary

In the matter of The trustee for the Giovenco/Insulations Joint Venture Trust, the Federal Court of Australia was asked to consider an application for the approval of the Wheatstone Project Agreement 2013. The trust was established under the auspices of the Australian Building and Construction Commission (ABCC), which had initiated proceedings against the trust in 2013 to recover underpayments of wages and entitlements to employees engaged by the trust. The trust applied to the court for approval of an agreement that would see the trust's obligations towards the affected employees met and the trust's assets preserved.

The primary legal issue before the court was whether the proposed agreement was in the best interests of the trust's creditors. The court was required to consider whether the agreement provided a fair and reasonable outcome for the employees, and whether it was the most appropriate method of resolving the trust's obligations. The court also had to determine whether the agreement complied with the requirements of the Fair Entitlements Guarantee (FEG) legislation, which provides for the protection of employees' unpaid entitlements in the event of their employer's insolvency.

The court found that the proposed agreement was in the best interests of the trust's creditors. The agreement provided a fair and reasonable outcome for the employees, as it would see their unpaid entitlements paid in full, and it was the most appropriate method of resolving the trust's obligations. The court also found that the agreement complied with the requirements of the FEG legislation. The court approved the agreement and ordered that it be implemented.

The court also made orders for the trust to pay the ABCC's costs of the application, and for the trust to provide further information to the ABCC to enable it to monitor the implementation of the agreement. The court's decision provides guidance to trustees and other stakeholders on the factors that must be considered when seeking court approval of an agreement to resolve the obligations of a trust established under the auspices of the ABCC.

The trustee for the Giovenco/Insulations JV Trust

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established