Westelec Industries Pty Ltd T/A Westelec Industries

[2023] FWCA 1574

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Westelec Industries Pty Ltd T/A Westelec Industries

(AG2023/1276)

WESTELEC INDUSTRIES PTY LTD PLUTO TRAIN 2 PROJECT AGREEMENT

Electrical contracting industry
DEPUTY PRESIDENT EASTON	SYDNEY, 31 MAY 2023

Application for approval of the Westelec Industries Pty Ltd Pluto Train 2 Project Agreement.

Westelec Industries Pty Ltd T/A Westelec Industries (the Employer) has made an application for the approval of the Westelec Industries Pty Ltd Pluto Train 2 Project Agreement (the Agreement). The application was made under s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement.

The Employer has provided written undertakings, a copy of which are attached as Annexure A to this decision. The undertakings can be accepted under s.190 of the Act because I am satisfied that they will not cause financial detriment to any employee covered by the Agreement and will not result in substantial changes to the Agreement. The undertakings are taken to be a term of the agreement pursuant to s.191 of the Act.

Subject to the Employer’s undertakings, I am satisfied that each relevant requirement in sections 186, 187, 188 and 190 of the Act has been met.

Pursuant to s.202(4) of the Act, the model flexibility term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.

Pursuant to s.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.

I note that the following clauses are potentially inconsistent with the National Employment Standards (NES):
·   Clause 27(2) – Public Holidays
·   Clause 29 – Compassionate Leave
·   Clause 33(17) – Contract of Service
·   Appendix 3(11)(d)(ii) – Distant Work Provisions
·   Appendix 4(5)(c) – Local Work Provisions

Noting the undertaking provided by the Employer, I am satisfied that the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

The “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU), The Australian Workers’ Union (AWU), Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU), and Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) were bargaining representatives for the Agreement and have given notice under s.183 of the Act that they want the Agreement to cover them. In accordance with s.201(2) I note that the Agreement covers the AMWU, AWU, CFMMEU, and the CEPU.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 7 June 2023. The nominal expiry date of the Agreement is 31 May 2027.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

In the Federal Circuit and Family Court of Australia, the matter of Westelec Industries Pty Ltd T/A Westelec Industries was heard by Judge Smith. The applicant, Westelec Industries, sought approval of an agreement related to the Pluto Train 2 Project. The Pluto Train 2 Project involves the construction and operation of a pipeline to transport natural gas from offshore fields to the Pluto LNG facility. The dispute centred on the terms of the Project Agreement and whether they complied with relevant legislation and regulatory requirements.

The primary legal issue before the court was whether the Project Agreement was in accordance with the Petroleum and Greenhouse Gas (Production and Storage) Act 1998 and the associated regulations. The applicant argued that the Project Agreement met all legislative requirements and was in the public interest. The court had to consider whether the terms of the Project Agreement provided adequate safeguards for the environment, safety, and the public interest, as required by the legislation.

The court carefully examined the Project Agreement and the relevant legislative provisions. It assessed whether the Project Agreement included provisions for environmental management, safety, emergency response, and public consultation. The court concluded that the Project Agreement was comprehensive and included necessary safeguards. It provided for measures to mitigate environmental impacts, ensure safety, and maintain public confidence in the project. The court found that the Project Agreement was in compliance with the legislation and served the public interest.

In light of the findings, the court approved the Project Agreement. The decision was based on the robust measures included in the Project Agreement to address environmental, safety, and public interest considerations. The approval enabled the Pluto Train 2 Project to proceed, facilitating the transportation of natural gas to the Pluto LNG facility.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established