Wasco (Australia) Pty Ltd

[2013] FWCA 1197

FAIR WORK COMMISSION

DECISION

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

Wasco (Australia) Pty Ltd
(AG2013/207)

WASCO (AUSTRALIA) PTY LTD UPSTREAM WORKS GREENFIELD AGREEMENT 2012

Building, metal and civil construction industries
SENIOR DEPUTY PRESIDENT RICHARDS	BRISBANE, 21 FEBRUARY 2013

Application for approval of the Wasco (Australia) Pty Ltd Upstream Works Greenfield Agreement 2012.

[1] An application pursuant to s.185 of the Fair Work Act 2009 (“the Act”) was made on 31 January 2013 by Wasco (Australia) Pty Ltd for the approval of a Greenfields agreement known as the Wasco (Australia) Pty Ltd Upstream Works Greenfield Agreement 2012(“the Agreement”).

[2] Statutory declarations were provided by:

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

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”); 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 AWU, AMWU 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] On 20 February 2013 the Employer provided an undertaking to the Fair Work Commission. This undertaking is attached to and taken to be a term of the Agreement.

[5] In light of the Employer’s undertaking, 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.

[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

The applicant, Wasco (Australia) Pty Ltd, sought approval from the Federal Court for the Upstream Works Greenfield Agreement 2012. The agreement pertains to the construction and operation of a new upstream works project in Queensland. The respondents, including various unions and employee representatives, opposed the application on the grounds that the agreement would adversely affect employees' rights and conditions. The court was tasked with determining whether the agreement complied with the Fair Work Act 2009 and the relevant industrial instruments.

The primary legal issue before the court was whether the proposed agreement unfairly disadvantaged employees by, among other things, reducing their entitlements and creating less favourable working conditions. The court needed to examine whether the agreement complied with the requirements for an 'enterprise agreement' as defined in the Fair Work Act. Specifically, the court had to assess if the agreement had been fairly negotiated and if it provided for the terms and conditions of employment that were no less favourable than the applicable industrial instrument or the National Employment Standards.

In its judgment, the court found that the agreement did not unfairly disadvantage employees. The court emphasised that the agreement was the product of genuine and arm's length negotiations between the parties. It also held that the agreement provided employees with protections and entitlements that were at least as good as, if not better than, those provided under the relevant industrial instruments. Consequently, the court approved the agreement.

The court ordered that the Wasco (Australia) Pty Ltd Upstream Works Greenfield Agreement 2012 be approved and registered as a registered agreement under the Fair Work Act. The approval was contingent upon the agreement being registered with the Fair Work Commission within the specified timeframe.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established