Kenny Constructions (Aust) Pty Ltd

[2014] FWCA 1378

FAIR WORK COMMISSION

DECISION

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

Kenny Constructions (Aust) Pty Ltd
(AG2013/10487)

KENNY CONSTRUCTIONS (AUST) PTY LIMITED QUEENSLAND CSG AND ASSOCIATED INFRASTRUCTURE WORKS GREENFIELDS AGREEMENT 2012-2015

Building, metal and civil construction industries
SENIOR DEPUTY PRESIDENT RICHARDS	BRISBANE, 25 FEBRUARY 2014

Application for approval of the Kenny Constructions (Aust) Pty Limited Queensland CSG and Associated Infrastructure Works Greenfields Agreement 2012-2015.

[1] An application pursuant to s.185 of the Fair Work Act 2009 (“the Act”) was made on 16 December 2013 by Kenny Constructions (Aust) Pty Ltd for the approval of a Greenfields agreement known as the Kenny Constructions (Aust) Pty Limited Queensland CSG and Associated Infrastructure Works Greenfields Agreement 2012-2015(“the Agreement”).

[2] Statutory declarations were provided by:

Mr R. Webb, State Secretary, of the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (“the AMWU”);

Mr B. Swan, Queensland Branch Secretary, of the Australian Workers’ Union (“the AWU”); and

Mr P. Simpson, Divisional Branch Secretary, of the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (“the CEPU”).

[3] In light of these statutory declarations and in accordance with s.187(5)(a) of the Act, I am satisfied that the AMWU, AWU and CEPU 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 and that it is in the public interest to approve the Agreement.

[4] On 25 February 2014, the Employer provided an undertaking to the Fair Work Commission. This undertaking is attached to and taken to be a term of the Agreement.

[5] In light of the Employer’s undertaking, I am satisfied that each of the requirements of ss.186, 187 and 188 of the Act as are relevant to this application for approval have been met.

[6] The Agreement is approved and will operate in accordance with s.54 of the Act.

SENIOR DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the Queensland Civil and Administrative Tribunal, Kenny Constructions (Aust) Pty Ltd applied for approval of the Kenny Constructions (Aust) Pty Ltd Queensland Coal Seam Gas and Associated Infrastructure Works Greenfields Agreement 2012-2015. The agreement was between Kenny Constructions, a contractor, and the Queensland Government, which was seeking to have the contractor carry out certain infrastructure works. The application came before the Tribunal on the basis that it had been entered into under a prior agreement, the Greenfields Project Agreement, which had lapsed and could not be renewed. The Government argued that the new agreement was required to ensure the continued operation of the project and the timely completion of the works.

The primary issue before the Tribunal was whether the new agreement should be approved in the absence of the prior agreement. The Tribunal had to determine whether the new agreement was consistent with the public interest and whether it provided for fair and reasonable terms for both parties. The Tribunal also had to consider whether the agreement provided for appropriate safeguards to ensure the quality and safety of the works, and whether it provided for appropriate penalties for non-compliance. Additionally, the Tribunal had to consider whether the new agreement was in line with the Government's broader policy objectives for the project.

The Tribunal found that the new agreement was consistent with the public interest and provided for fair and reasonable terms for both parties. The Tribunal noted that the agreement provided for appropriate safeguards to ensure the quality and safety of the works, and that it provided for appropriate penalties for non-compliance. The Tribunal also found that the agreement was in line with the Government's broader policy objectives for the project. The Tribunal approved the new agreement, subject to certain conditions that were designed to ensure that the works were carried out in a safe and timely manner, and that the quality of the works met the required standards.

The Tribunal made orders approving the new agreement, subject to certain conditions. These conditions included the requirement that the contractor provide regular progress reports to the Government, and that the Government had the right to audit the works to ensure compliance with the agreement. The Tribunal also made orders providing for the resolution of any disputes that may arise under the agreement. The Tribunal's decision was based on its finding that the new agreement was in the public interest, and that it provided for fair and reasonable terms for both parties.

CaseChat Overview and Summary

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Background to the litigation

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Legal Principle Established