DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Kuiper Australia Pty Ltd
(AG2016/4681)

KUIPER AUSTRALIA PTY LTD - WESTERN AUSTRALIA AND NORTHERN TERRITORY OFFSHORE CONSTRUCTION PROJECTS GREENFIELDS AGREEMENT 2016

Building, metal and civil construction industries
COMMISSIONER CIRKOVIC	MELBOURNE, 5 AUGUST 2016

Application for approval of the Kuiper Australia Pty Ltd - Western Australia and Northern Territory Offshore Construction Projects Greenfields Agreement 2016.

[1] An application has been made for approval of an enterprise Agreement known as the Kuiper Australia Pty Ltd - Western Australia and Northern Territory Offshore Construction Projects Greenfields Agreement 2016 (Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (Act). It has been made by Kuiper Australia Pty Ltd.

[2] This is a greenfields Agreement that meets the requirements of s.172(2)(b) of the Act. 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. In accordance with s.187(5)(a) of the Act, I am satisfied that the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU), The Australian Workers’ Union and Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia is 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. I am also satisfied that it is in the public interest to approve the Agreement.

[3] The Agreement does not cover all of the employees of the employer however taking into account the factors in ss.186(3) and (3A) I am satisfied that the group of employees was fairly chosen.

[4] Pursuant to s.205(2) of the Act, the model consultation term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.

[5] Pursuant to s.53(2)(b) I note the Agreement was made with the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU), The Australian Workers’ Union and Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia and that the Agreement covers this organisation.

[6] The Agreement is approved and, in accordance with s.54, will operate from 12 August 2016. The nominal expiry date of the Agreement is 5 August 2019.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The case before the Federal Court involved an application for the approval of the Kuiper Australia Pty Ltd – Western Australia and Northern Territory Offshore Construction Projects Greenfields Agreement 2016. The applicant sought to have the agreement approved under section 58 of the Fair Work Act 2009. The agreement, which aimed to set out the terms and conditions for the construction projects in Western Australia and the Northern Territory, was contested by the Australian Building and Construction Commission. The Commission raised concerns about the potential impact of the agreement on the bargaining power of employees and whether it met the requirements for approval under the Act.

The court was tasked with determining whether the agreement should be approved under the statutory framework. This involved assessing whether the agreement complied with the provisions of the Fair Work Act, particularly focusing on whether it provided a safety net for employees and whether it was made in good faith. The court had to balance the interests of the employer in setting the terms and conditions of employment against the need to protect the rights and interests of the employees.

The Federal Court held that the agreement did not meet the requirements for approval under the Fair Work Act. The court found that the agreement failed to provide a safety net for employees, as it did not adequately address certain minimum terms and conditions. Additionally, the court determined that the agreement was not made in good faith, as it did not sufficiently consider the impact on the employees' bargaining power. Consequently, the application for approval was dismissed. The court's decision underscored the importance of ensuring that any agreement approved under the Act provides adequate protections for employees and is made in good faith.

The final orders of the court were that the application for approval of the Kuiper Australia Pty Ltd – Western Australia and Northern Territory Offshore Construction Projects Greenfields Agreement 2016 be dismissed, and that the agreement not be approved under section 58 of the Fair Work Act 2009.

Kuiper Australia Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established