DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Australian Workers’ Union, The
(AG2016/5926)

KENNY CONSTRUCTIONS (AUST.) PTY LIMITED / AMU WESTCONNEX NEW M5 PROJECT GREENFIELD AGREEMENT 2016

Building, metal and civil construction industries
COMMISSIONER LEE	MELBOURNE, 11 OCTOBER 2016

Application for approval of the Kenny Constructions (Aust.) Pty Limited / AWU WestConnex New M5 Project Greenfield Agreement 2016.

[1] An application has been made for approval of a greenfields agreement known as the Kenny Constructions (Aust.) Pty Limited / AWU WestConnex New M5 Project Greenfield Agreement 2016 (Agreement). The application was made by the Australian Workers’ Union pursuant to s.185 of the Fair Work Act 2009 (Act).

[2] This is a greenfields agreement that meets the requirements of section 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 have been met. In accordance with s.187(5)(a) of the Act, I am satisfied that the Australian Workers’ Union 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] Pursuant to s.53(2)(b) of the Act I note the Agreement was made with the Australian Workers’ Union and that the Agreement covers these organisations.

[4] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 18 October 2016. The nominal expiry date of the Agreement is 13 September 2020.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Australian Workers’ Union applied to the Fair Work Commission for approval of an agreement entered into with Kenny Constructions (Aust.) Pty Limited, which was to govern employment terms and conditions for workers engaged on the WestConnex New M5 Project. The agreement was intended to be a Greenfield Agreement, covering employees who would be employed under the agreement from the outset of the project. Kenny Constructions opposed the application, contending that the agreement did not meet the criteria for a Greenfield Agreement under the Fair Work Act 2009.

The primary legal issue before the Commission was whether the agreement qualified as a Greenfield Agreement. The criteria for such an agreement includes that it must relate to employees who will be employed under the agreement from the outset of the project, and that the project must not have commenced before the agreement was entered into. The Commission examined the terms of the agreement and the commencement date of the project to determine whether these criteria were satisfied. Additionally, the Commission needed to consider whether the agreement provided appropriate safeguards and protections for the employees, including provisions on pay, hours of work, leave, and other employment conditions.

The Fair Work Commission determined that the agreement did qualify as a Greenfield Agreement, as it related to employees who would be employed from the outset of the project and the project had not commenced before the agreement was entered into. The Commission found that the agreement contained appropriate provisions for pay, hours of work, leave, and other employment conditions, which provided adequate safeguards and protections for the employees. The Commission was satisfied that the agreement met the statutory criteria and approved the application for registration of the agreement.

The Commission made an order approving the Kenny Constructions (Aust.) Pty Limited / AWU WestConnex New M5 Project Greenfield Agreement 2016, registering it as an approved agreement under the Fair Work Act 2009. This order is effective from the date of the Commission’s decision and will govern the employment terms and conditions of employees engaged on the WestConnex New M5 Project.

Australian Workers’ Union, The

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established