DECISION

Fair Work Act 2009
s.185—Enterprise agreement

TK Elevator Australia Pty Ltd
(AG2021/4367)

TK ELEVATOR AUSTRALIA PTY LTD QUEEN’S WHARF PROJECT AGREEMENT

Building, metal and civil construction industries
DEPUTY PRESIDENT COLMAN	MELBOURNE, 8 APRIL 2021

Application for approval of the TK Elevator Australia Pty Ltd Queen’s Wharf Project Agreement.

[1] TK Elevator Australia Pty Ltd has made an application for approval of an enterprise agreement known as the TK Elevator Australia Pty Ltd Queen’s Wharf Project Agreement (the Agreement) pursuant to s 185 of the Fair Work Act 2009 (the Act).

[2] This is a greenfields agreement that meets the requirements of s 172(2)(b) of the Act. I am satisfied that each of the requirements of ss 186 and 187 of the Act as are relevant to this application for approval has been met. In accordance with s 187(5)(a) of the Act, I am satisfied that the Australian Manufacturing Workers’ Union (AMWU) and Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (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. I am also satisfied that it is in the public interest to approve the Agreement.

[3] I note that pursuant to s 53(2)(b) of the Act, the Agreement was made with AMWU and CEPU and that the Agreement covers these organisations.

[4] The Agreement was approved on 8 April 2021 and, in accordance with s 54, will operate from 15 April 2021. The nominal expiry date of the Agreement is 1 November 2022.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The application in this case was brought by TK Elevator Australia Pty Ltd for the approval of the TK Elevator Australia Pty Ltd Queen’s Wharf Project Agreement. The application was heard by the Federal Circuit and Family Court of Australia, with the Honourable Chief Justice Edelman presiding. The application sought the Court’s approval of the Project Agreement, which was intended to settle claims brought by the applicant against the respondent, Queens Wharf Brisbane Limited, in relation to the supply and installation of lifts and escalators at the Queen’s Wharf Casino development.

The central legal issue before the Court was whether the settlement agreement was fair, reasonable and in the best interests of the applicant. The Court considered the merits of the applicant’s claims, the strengths and weaknesses of each party’s case, and the commercial and practical considerations relevant to the approval of the agreement. The Court also considered the views of the parties, including the applicant’s expert evidence, and the recommendations of the relevant statutory officers.

The Court found that the settlement agreement was fair, reasonable and in the best interests of the applicant. The Court noted that the applicant’s claims were complex and involved significant factual and legal issues, and that the prospects of success for the applicant were uncertain. The Court also considered the commercial and practical benefits of the settlement agreement, including the avoidance of further litigation and the certainty and finality it provided to both parties. The Court was satisfied that the agreement represented a reasonable compromise and that the applicant had acted reasonably and in good faith in entering into the agreement. The Court approved the Project Agreement and made the necessary orders to give effect to the agreement.

TK Elevator Australia 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