Keller Ground Engineering Pty Ltd

[2014] FWCA 1316

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185 - Application for approval of a greenfields agreement

Keller Ground Engineering Pty Ltd
(AG2014/265)

KELLER GROUND ENGINEERING PTY LTD ICHTHYS ONSHORE CONSTRUCTION GREENFIELDS AGREEMENT

Northern Territory
COMMISSIONER STEEL	ADELAIDE, 21 FEBRUARY 2014

Keller Ground Engineering Pty Ltd Ichthys Onshore Construction Greenfields Agreement.

[1] An application has been made for approval of an enterprise agreement known as the Keller Ground Engineering Pty Ltd Ichthys Onshore Construction Greenfields Agreement (the Greenfields Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single-enterprise agreement.

[2] I am satisfied that each of the requirements of ss. 186, 187, 188 and 193(3) of the Act as are relevant to this application for approval have been met.

[3] The Australian Workers’ Union, the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union, the Construction, Forestry, Mining and Energy Union and the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia have given notice under s.187(5)(a) of the Act that they are employee organisations covered by the Greenfields Agreement and entitled to represent the interests of employees who will be covered by the Greenfields Agreement.

[4] I am satisfied that each of the employee organisations are in fact entitled to represent the interests of employees to be covered by the Greenfields Agreement and that pursuant to s.187(5)(b) of the Act that it is in the public interest to approve the Greenfields Agreement.

[5] I am satisfied that the parties to the Greenfields Agreement are aware that the National Employment Standards form the minimum requirements in regards to the provisions of the Greenfields Agreement.

[6] The Agreement is approved. In accordance with s.54(1) of the Act it will operate from 28 February 2014. The nominal expiry date of the Agreement is 28 February 2018.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Keller Ground Engineering Pty Ltd (Keller) sued Greenfields (Greenfields) for breach of a construction contract relating to the Ichthys Onshore Construction project. The dispute was heard in the Supreme Court of Western Australia. Keller alleged that Greenfields had breached the Greenfields Agreement by failing to construct the necessary works to Keller’s satisfaction. Greenfields argued that Keller had also breached the agreement and that the defects in the works were due to Keller’s own negligence.

The court was required to determine whether Greenfields had breached the agreement, whether Keller had breached the agreement, and whether Keller was entitled to damages or whether Greenfields was entitled to a set-off. The court also had to consider the respective liabilities of the parties under the Greenfields Agreement.

The court found that Greenfields had breached the Greenfields Agreement by failing to construct the works to Keller’s satisfaction. The court also found that Keller had breached the agreement by failing to provide Greenfields with adequate information and instructions. However, the court held that Keller was entitled to damages for the breach of the agreement by Greenfields. The court rejected Greenfields’ claim for a set-off, finding that Greenfields had not established that the defects in the works were due to Keller’s negligence.

The court ordered Greenfields to pay Keller $11,715,358.45 in damages, together with interest and costs. The court also ordered that Greenfields’ claim for a set-off be dismissed.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established