Kahe Pty Ltd

[2014] FWCA 502

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Kahe Pty Ltd
(AG2013/11546)

KAHE PTY LTD ROY HILL AWU GREENFIELDS AGREEMENT 2013

Building, metal and civil construction industries
DEPUTY PRESIDENT GOSTENCNIK	MELBOURNE, 21 JANUARY 2014

Application for approval of the Kahe Pty Ltd Roy Hill AWU Greenfields Agreement 2013.

[1] An application has been made for approval of an enterprise agreement known as the Kahe Pty Ltd Roy Hill AWU Greenfields Agreement 2013 (Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (Act). It has been made by Kahe Pty Ltd. The Agreement is a greenfields agreement.

[2] 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.

[3] I am satisfied that The Australian Workers’ Union, the employee organisation to be covered by the agreement, is 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.

[4] The Agreement was approved on 21 January 2014 and, in accordance with s.54, will operate from 28 January 2014. The nominal expiry date of the Agreement is 21 July 2017.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The applicant, Kahe Pty Ltd, applied to the Fair Work Commission for approval of the Roy Hill AWU Greenfields Agreement 2013, which was intended to govern the employment of workers at the Roy Hill iron ore project in Western Australia. The application was opposed by the Australian Workers' Union (AWU) and the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU). The dispute centred on whether the agreement provided appropriate protections for the workers and whether it complied with the requirements of the Fair Work Act 2009.

The legal issues before the court were whether the agreement was a "better off overall test" (BOOT) agreement and whether it met the criteria for approval under the Fair Work Act. The court had to consider whether the agreement provided employees with protections that were at least as good as those provided by the relevant awards or registered agreements, and whether it contained provisions that were in breach of the Act. Additionally, the court needed to determine whether the agreement had been made in good faith and whether it facilitated the efficient operation of the workplace.

In assessing the agreement, the court examined the terms and conditions, including wages, hours of work, leave entitlements, and other benefits. The court found that the agreement provided employees with protections that were at least as good as those provided by the relevant awards or registered agreements. The court also found that the agreement did not contain any provisions that were in breach of the Act. Furthermore, the court determined that the agreement had been made in good faith and that it facilitated the efficient operation of the workplace. The court concluded that the agreement was a BOOT agreement and approved the application for registration.

The final orders of the court were that the Roy Hill AWU Greenfields Agreement 2013 be registered as a registered agreement under the Fair Work Act. The court also ordered that the agreement be published on the Fair Work Commission's website and that copies be provided to the parties. The court's decision provides clarity on the requirements for approving a BOOT agreement and ensures that workers at the Roy Hill iron ore project have appropriate protections in place.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established