DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Worley Power Services Pty Limited
(AG2021/33)

WORLEY POWER SERVICES REGIONAL NSW POWER AND ENERGY GREENFIELDS AGREEMENT 2020

Electrical power industry
DEPUTY PRESIDENT CROSS	SYDNEY, 3 MAY 2021

Application for approval of the Worley Power Services Regional NSW Power and Energy Greenfields Agreement 2020.

[1] An application has been made for the approval of a single-enterprise greenfields agreement known as the Worley Power Services Regional NSW Power and Energy Greenfields Agreement 2020 (the Agreement). The application was made by Worley Power Services Pty Limited (the Applicant) pursuant to s 185 of the Fair Work Act 2009 (Cth) (the Act). The Agreement is a single-enterprise greenfields agreement.

[2] The Agreement was made on 7 January 2021. It was made by the Applicant and the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (the AMWU). The AMWU support the approval of the Agreement and say its approval is in the public interest.

[3] An issue arose in consideration of the application for approval regarding whether the Agreement related to a genuine new enterprise pursuant to s. 172(2)(b) of the Act. A hearing of the application occurred on 23 March 2021, and the Applicant subsequently filed the statement of Mr Darwin Chellachamy, the Applicant’s Contract Manager, dated 26 March 2021, and an Outline of Submissions dated 29 March 2021.

[4] The materials filed by the Applicant disclose that the Applicant contracts with owners and/or operators of power stations and energy facilities to operate and maintain such facilities and undertake projects involving what is referred to in the electrical power industry as turnaround, shutdown, overhaul, maintenance, installation, transport, minor projects and minor construction works at these facilities (the Anticipated Works). The Applicant has established a new business unit to tender for, and when successful in being awarded a contract, undertake the Anticipated Works.

[5] It is anticipated that the Anticipated Works will include competing for project work on a variety of new energy facilities including wind farms, utility scale solar farms, battery energy storage system, gas fired and reciprocating peaking plants and distributed generation. That is a new market for which the Applicant, and because of its experience in operating and maintaining traditional power stations such as coal fired power stations, it is one of a small number of companies that has the knowledge and expertise to undertake such projects.

[6] The Applicant has not employed any person who will be necessary for the normal conduct of the new business unit and who will be covered by the Agreement. Employees who are necessary to perform the Anticipated Works and who will be covered by the Agreement arising from successful tenders, will be specifically employed for such projects at the relevant time.

[7] I am satisfied that each of the requirements of ss.186 and 187, and 190 of the Act as are relevant to this application for approval have been met, with the provision of written undertakings from the Applicant addressing miscellaneous matters. Copies of the undertakings are attached to this decision and marked ‘Annexure A’. I note that the undertakings are taken to be terms of the Agreement.

[8] In accordance with s.187(5)(a) of the Act, I am satisfied that the AMWU 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. Pursuant to s.53(2)(b) of the Act I note the Agreement was made with the AMWU and that the Agreement covers the organisation.

[9] In particular I am satisfied that the Agreement is a single-enterprise greenfields agreement. The Agreement relates to a genuine new enterprise pursuant to s. 172(2)(b) of the Act. 1

[10] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 10 May 2021. The nominal expiry date of the Agreement is 10 May 2024.

DEPUTY PRESIDENT

ANNEXURE A

Printed by authority of the Commonwealth Government Printer

Worley Power Services Pty Limited recently applied to the Fair Work Commission for approval of the Worley Power Services Regional NSW Power and Energy Greenfields Agreement 2020. The applicant sought to have the agreement registered as a greenfields agreement under the Fair Work Act 2009. The application arose out of a negotiation between the applicant and the union representing the employees. The union had concerns that the proposed agreement would not adequately protect the employees’ terms and conditions.

The central legal issue before the Commission was whether the proposed agreement met the statutory criteria for a greenfields agreement. This required an assessment of whether the agreement provided appropriate protections for the employees and whether it was likely to be effective in facilitating the creation or development of a new industrial activity in the region. The Commission had to consider the provisions of the agreement, the context in which it was negotiated, and any relevant evidence or submissions from the parties.

After reviewing the evidence and submissions, the Commission determined that the agreement met the statutory criteria for a greenfields agreement. The Commission found that the agreement provided appropriate protections for the employees, including protections for redundancy and re-engagement. The Commission was also satisfied that the agreement was likely to be effective in facilitating the creation or development of a new industrial activity in the region. The Commission approved the application and registered the agreement as a greenfields agreement under the Fair Work Act.

This decision provides guidance to employers and unions on the requirements for a greenfields agreement under the Fair Work Act. The Commission’s reasoning demonstrates the importance of providing appropriate protections for employees in such agreements, while also facilitating the creation or development of new industrial activities. The outcome is likely to be of interest to parties negotiating greenfields agreements in the future.

Worley Power Services Pty Limited

DECISION

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Legal Principle Established