Kuiper Australia Pty Ltd

[2024] FWCA 3904

[2024] FWCA 3904

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s 185—Enterprise agreement

Kuiper Australia Pty Ltd

(AG2024/3988)

KUIPER AUSTRALIA PTY LTD - WESTERN AUSTRALIA AND NORTHERN TERRITORY OFFSHORE CONSTRUCTION PROJECTS AGREEMENT 2024

Oil and gas industry
COMMISSIONER LIM	PERTH, 12 NOVEMBER 2024

Application for approval of the Kuiper Australia Pty Ltd - Western Australia and Northern Territory Offshore Construction Projects Agreement 2024.

1. Kuiper Australia Pty Ltd (the Applicant) has made an application for the approval of an enterprise agreement known as the Kuiper Australia Pty Ltd - Western Australia and Northern Territory Offshore Construction Projects Agreement 2024. The application was made under s 185 of the Fair Work Act 2009 (Cth). The Agreement is a single enterprise agreement.

1. I note that the following clauses in the Agreement appear to be inconsistent with the National Employment Standards (NES):

(a)Clause 11.11 of the Agreement states that if an Employee is a shift worker for the purpose of the NES then the Employee is a shift worker under the Agreement for the purposes of the NES – yet it does not appear to define a shiftworker in line with clause 31.1 and 2 of the Building and Construction General On-site Award 2020, which defines a shiftworker as a ‘continuous shiftworker’. A ‘continuous shiftworker’ is defined as an employee engaged to work in a system of consecutive shifts throughout the 24 hours of each of at least six consecutive days without interruption (except during breakdown or meal breaks or due to unavoidable causes beyond the control of the employer) and who is regularly rostered to work those shifts.

(b)Clause 27 provides a list of public holidays. It does not appear to include any other day or part day prescribed as per s 115(1)(b) of the Act.

(c)Clause 27.3 states that employees shall work, and work shall be scheduled to continue day by day until the job is completed without interruption for public holidays, irrespective of the time of year on which those holidays fall including the Christmas/New Year holiday period. This appears to be inconsistent with s 114(1) of the Act which provides that an employee is entitled to be absent from their employment on a day or part‑day that is a public holiday in the place where the employee is based for work purposes, unless the request to work is reasonable as per s 114(4) of the Act.

1. However, I am satisfied that under clause 7.2 of the Agreement, the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

1. The "Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers’ Union (AMWU), The Australian Workers’ Union (AWU) and the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) (together, the organisations), being bargaining representatives for the Agreement, have given notice under s 183 of the Act that they want the Agreement to cover them. In accordance with s 201(2), and based on the declarations provided by the organisations, I note that the organisations are covered by the Agreement.

1. The Agreement was approved on 12 November 2024 and, in accordance with s 54, will operate from 19 November 2024. The nominal expiry date of the Agreement is 12 November 2028.

COMMISSIONER

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