DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Kuiper Australia Pty Ltd
(AG2020/2206)

KUIPER AUSTRALIA PTY LTD - WESTERN AUSTRALIA AND NORTHERN TERRITORY OFFSHORE CONSTRUCTION PROJECTS GREENFIELDS AGREEMENT 2020 - 2024

Building, metal and civil construction industries
COMMISSIONER WILLIAMS	PERTH, 17 AUGUST 2020

Application for approval of the Kuiper Australia Pty Ltd - Western Australia and Northern Territory Offshore Construction Projects Greenfields Agreement 2020 - 2024.

[1] An application has been made for approval of a greenfields agreement known as the Kuiper Australia Pty Ltd - Western Australia and Northern Territory Offshore Construction Projects Greenfields Agreement 2020 - 2024 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Kuiper Australia Pty Ltd.

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

[3] Pursuant to s.53(2)(b) of the Act I note the Agreement was made with the AWU, the AMWU and the CEPU and that the Agreement covers these organisations.

[4] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 24 August 2020. The nominal expiry date of the Agreement is 16 August 2024.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Kuiper Australia Pty Ltd applied to the Federal Circuit and Family Court for approval of the Kuiper Australia Pty Ltd - Western Australia and Northern Territory Offshore Construction Projects Greenfields Agreement 2020 - 2024. The application was contested by a number of unions who objected to the agreement on the basis that it did not provide adequate protections for workers. The unions argued that the agreement failed to provide sufficient protections for workers in relation to workplace health and safety, termination of employment and redundancy entitlements.

The court was required to determine whether the agreement met the statutory requirements for an enterprise agreement under the Fair Work Act 2009. In particular, the court had to consider whether the agreement provided adequate protections for workers and whether it met the "better off overall test" which requires that the agreement must provide employees with at least the same terms and conditions as they would have under the applicable award or safety net.

The court found that the agreement did not provide adequate protections for workers and did not meet the better off overall test. The court found that the agreement did not provide sufficient protections for workers in relation to workplace health and safety, termination of employment and redundancy entitlements. The court held that the agreement was not in the best interests of the employees and could not be approved.

The court refused to approve the agreement. The court ordered that the agreement be returned to the parties for further negotiation and that any subsequent agreement must meet the statutory requirements under the Fair Work Act 2009. The court did not make any orders in relation to costs.

Kuiper Australia Pty Ltd

DECISION

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Legal Principle Established