KAEFER Integrated Services Pty Ltd Summary

[2018] FWCA 983

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.225—Enterprise agreement

KAEFER Integrated Services Pty Ltd

(AG2018/330)

KAEFER INTEGRATED SERVICES PTY LTD BHPB IRON ORE GROWTH PROJECTS STAGE 1 AMWU GREENFIELDS AGREEMENT

Building, metal and civil construction industries
COMMISSIONER WILLIAMS	PERTH, 15 FEBRUARY 2018

Application for termination of the KAEFER Integrated Services Pty Ltd BHPB Iron Ore Growth Projects Stage 1 AMWU Greenfields Agreement.

This decision concerns an application made by KAEFER Integrated Services Pty Ltd (the Applicant) for the termination of the KAEFER Integrated Services Pty Ltd BHPB Iron Ore Growth Projects Stage 1 AMWU Greenfields Agreement (the Agreement).

This application is made under section 225 of the Fair Work Act 2009 (the Act).

This section of the Act allows an employer to apply to the Commission for the termination of an agreement that has passed its nominal expiry date.

Section 226 of the Act, set out below, details the considerations for the Commission when dealing with such an application.

“226 When the FWC must terminate an enterprise agreement

If an application for the termination of an enterprise agreement is made under section 225, the FWC must terminate the agreement if:

(a) the FWC is satisfied that it is not contrary to the public interest to do so; and
(b) the FWC considers that it is appropriate to terminate the agreement taking into account all the circumstances including:

(i) the views of the employees, each employer, and each employee organisation (if any), covered by the agreement; and
(ii) the circumstances of those employees, employers and organisations including the likely effect that the termination will have on each of them.”

The Applicant has provided in support of its application a statutory declaration from Mr Adie Kadir (Mr Kadir) who is the Industrial Relations Manager of the Applicant.

Mr Kadir explains that the Agreement had a nominal expiry date in 13 December 2015 and that no employee is covered by the Agreement as the work on the projects has been completed.

The “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) was invited to provide its view on the application but did not seek to make a submission.

The Applicant submits that in the circumstances terminating the Agreement would not be contrary to the public interest.

Consideration

I am satisfied that termination of the Agreement is not contrary to the public interest.

Taking into account the views of the employer and accepting the Applicant’s statement that there are no employees covered by the Agreement, which has not been challenged by the AMWU, I do consider in the circumstances here that it is appropriate to terminate the Agreement.

Accordingly, the KAEFER Integrated Services Pty Ltd BHPB Iron Ore Growth Projects Stage 1 AMWU Greenfields Agreement is terminated and pursuant to section 227 of the Act, the termination is to take effect on and from the date of this decision.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

The matter before the Fair Work Commission involved an application by BHP Billiton Iron Ore Pty Ltd to terminate the KAEFER Integrated Services Pty Ltd BHPB Iron Ore Growth Projects Stage 1 AMWU Greenfields Agreement. The applicant sought to terminate the agreement on the grounds that the respondent had breached the agreement by failing to provide the required services as outlined. The dispute was heard by the Commission, with both parties presenting their respective arguments.

The primary legal issues the Commission needed to address were whether the respondent had indeed breached the agreement, and if so, whether the breach was sufficiently serious to warrant termination of the agreement. The Commission also had to consider whether termination was an appropriate remedy in the circumstances, taking into account the potential impact on the workforce and the broader industry.

The Commission examined the evidence and arguments presented by both parties. It found that the respondent had indeed breached the agreement by failing to provide the required services. However, the Commission also noted that the breaches were not as severe as the applicant had suggested, and that there were mitigating factors. Considering the potential impact of termination on the workforce and the industry, the Commission determined that termination was not the appropriate remedy. Instead, the Commission ordered the parties to engage in good-faith negotiations to address the breaches and to work towards a resolution that would be in the best interests of all parties involved.

As a result of the Commission's decision, the application for termination of the agreement was dismissed. The parties were ordered to engage in good-faith negotiations to address the breaches and to work towards a resolution that would be in the best interests of all parties involved. The Commission's decision provides guidance on the appropriate approach to resolving disputes under industry agreements and the importance of considering the broader implications of termination on the workforce and the industry.

KAEFER Integrated Services Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established