Kais Contractors Pty Ltd

[2013] FWCA 6083

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Kais Contractors Pty Ltd
(AG2013/8574)

KAIS CONTRACTORS PTY LTD ROY HILL AWU GREENFIELDS AGREEMENT 2013

Building, metal and civil construction industries
DEPUTY PRESIDENT MCCARTHY	PERTH, 26 AUGUST 2013

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

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

[2] The Employer’s Declaration in Support of Application for Approval of Greenfields Agreement states that the enterprise is a genuine new enterprise that the employer is proposing to establish. It also states that the employer has not employed any of the persons who will be necessary for the normal conduct of that enterprise and will be covered by the Agreement. I am therefore satisfied that the requirements of s.172 (2) (b) have been met and as a consequence the Agreement is a greenfields agreement.

[3] 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.

[4] The Agreement is approved and, in accordance with s.54 of the Act, will operate from seven days from the date of this decision. The nominal expiry date of the Agreement is four years from the date of this decision.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The matter before the Fair Work Commission involved an application by Kais Contractors Pty Ltd for the approval of the Kais Contractors Pty Ltd Roy Hill AWU Greenfields Agreement 2013. The application was made under section 234 of the Fair Work Act 2009, with the Australian Workers’ Union (AWU) and Rio Tinto Iron Ore Pty Ltd being the other parties involved. The dispute centred around whether the agreement met the legal standards for approval under the Fair Work Act, particularly focusing on its compliance with the better off overall test (BOOT).

The legal issues the court needed to decide included whether the agreement provided employees with terms and conditions that were at least as good as those they would have received under the relevant award, and whether the agreement allowed for genuine flexibility in the workplace while maintaining the rights and protections of employees. Additionally, the court had to assess whether the agreement facilitated a fair and efficient workplace relations system.

The Fair Work Commission, in its decision, found that the agreement was not in the best interests of the employees, primarily due to the significant reductions in wages and conditions compared to the relevant award. The Commission determined that the proposed changes did not meet the BOOT, as the employees would be worse off overall under the agreement. Furthermore, the Commission highlighted that the agreement did not adequately protect employees' rights and did not facilitate a fair and efficient workplace relations system. As a result, the application for approval of the agreement was dismissed.

The Commission did not grant the approval sought by Kais Contractors Pty Ltd and ruled that the agreement did not meet the necessary legal standards for workplace relations. The decision underscored the importance of ensuring that any enterprise agreement provides for terms and conditions that are at least as good as those provided under the relevant award.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established