Kobalt Enc Pty Ltd

[2013] FWCA 10000

FAIR WORK COMMISSION

DECISION

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

Kobalt Enc Pty Ltd
(AG2013/10461)

KOBALT ENC PTY LTD QUEENSLAND LNG PROJECTS UNION GREENFIELD AGREEMENT

Building, metal and civil construction industries
SENIOR DEPUTY PRESIDENT RICHARDS	BRISBANE, 23 DECEMBER 2013

Application for approval of the Kobalt Enc Pty Ltd Queensland LNG Projects Union Greenfield Agreement.

[1] An application pursuant to s.185 of the Fair Work Act 2009 (“the Act”) was made on 13 December 2013 by Kobalt Enc Pty Ltd for the approval of a Greenfields agreement known as the Kobalt Enc Pty Ltd Queensland LNG Projects Union Greenfield Agreement(“the Agreement”).

[2] Statutory declarations were provided by:

Mr T. Bradley, Assistant 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 20 December 2013 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

Kobalt Enc Pty Ltd sought approval for the Queensland LNG Projects Union Greenfield Agreement. The application was brought before the Fair Work Commission, which was required to determine whether the agreement complied with the relevant legislative provisions. The primary legal issues before the Commission were whether the agreement met the criteria for registration under the Fair Work Act 2009, and whether the agreement was genuinely negotiated between the employer and the union.

The Commission examined the process through which the agreement was negotiated and concluded that the agreement had indeed been genuinely negotiated between the parties. The Commission also considered whether the agreement met the requirements for approval under the Fair Work Act, including whether it provided for a fair and reasonable balance of rights and obligations for the parties. The Commission determined that the agreement did not unduly disadvantage either party and was therefore fair and reasonable. Additionally, the Commission was satisfied that the agreement contained provisions for the resolution of disputes, which met the statutory requirements.

As a result of its findings, the Commission approved the agreement, finding it to be compliant with the Fair Work Act. The Commission's decision was based on its conclusion that the agreement was genuinely negotiated and provided a fair and reasonable balance of rights and obligations for the parties. The Commission also noted that the agreement contained provisions for the resolution of disputes, which met the statutory requirements.

The Fair Work Commission approved the Queensland LNG Projects Union Greenfield Agreement between Kobalt Enc Pty Ltd and the union. The Commission found that the agreement was genuinely negotiated and met the statutory requirements for approval, including providing for a fair and reasonable balance of rights and obligations for the parties and containing provisions for the resolution of disputes.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established