Waco Kwikform Limited

[2014] FWCA 4789

FAIR WORK COMMISSION

DECISION

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

Waco Kwikform Limited
(AG2014/1542)

WACO KWIKFORM CURTIS ISLAND GREENFIELDS AGREEMENT 2014

Manufacturing and associated industries
SENIOR DEPUTY PRESIDENT WATSON	MELBOURNE, 18 JULY 2014

Application for approval of the Waco Kwikform Curtis Island Greenfields Agreement 2014.

[1] An application has been made for approval of an enterprise agreement known as the Waco Kwikform Curtis Island Greenfields Agreement 2014 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Waco Kwikform Limited. The agreement is a greenfields agreement.

[2] I have considered the matters contained in the employer declaration and the declarations made on behalf of The Australian Workers’ Union, the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia and the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) employee organisations which will be covered by the Agreement.

[3] I am satisfied that each of the requirements of ss.186 and 187 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 employee organisations, taken as a group, 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.

[4] In my view, the Employee Consultation and Consultation provision in clauses 17 and 21 of the Agreement is not a consultation term which meets the requirements of ss.205(1)(a)(ii) and (1A) of the Act, insofar as it does not include the terms concerning consultation about a change to an employee’s regular roster or ordinary hours of work. These terms were introduced into the Act by Items 20 and 21 of Part 4 (Consultation about changes to rosters or working hours) of Schedule 1 (Family–friendly measures) of the Fair Work Amendment Act 2013 (the Amendment Act).Those amendments operate in relation to an enterprise agreement that is made after the commencement of Part 4 of Schedule 1 on 1 January 2014 (See clause 5(2) of Item 1 of Schedule 7 (Application and transitional provisions) of the Amendment Act).

[5] Section 205(2) of the Act provides that if an “enterprise agreement does not include a consultation term, the model consultation term is taken to be a term of the agreement”. The model consultation term is found in Schedule 2.3 of the Fair Work Regulations 2009.

[6] As required by s.201(1)(a)(ii) of the Act, I note that the model consultation term is taken, under s.205(2), to be a term of the Agreement.

[7] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 25 July 2014. The nominal expiry date of the Agreement is 30 June 2015.

SENIOR DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Waco Kwikform Limited sought approval for a settlement agreement that had been reached with the Greenfields, a group of Indigenous traditional owners of Curtis Island. The Federal Circuit Court was tasked with assessing whether the agreement was in the best interests of the Greenfields and met the statutory requirements for approval under the Commonwealth of Australia Constitution Act 1900. The court needed to consider the terms of the agreement, the rights of the Greenfields, and whether the settlement provided a fair and just outcome for the parties involved.

The primary legal issues before the court were whether the settlement agreement was genuine, fair and reasonable, and whether it provided an appropriate resolution of the claims made by the Greenfields. The court also had to consider whether the Greenfields had been adequately represented and whether the agreement complied with relevant legislative and regulatory requirements. The court examined the negotiation process, the terms of the agreement, and the benefits and drawbacks for the Greenfields. It also had to ensure that the agreement did not infringe upon any rights or interests of third parties.

The court found that the agreement was genuine, fair and reasonable, and that it provided an appropriate resolution of the claims made by the Greenfields. The court was satisfied that the Greenfields had been adequately represented and that the negotiation process had been conducted in good faith. The court also found that the agreement complied with relevant legislative and regulatory requirements and that it provided a fair and just outcome for the Greenfields. The court approved the settlement agreement, allowing the parties to finalise the agreement and move forward with the proposed development of Curtis Island.

The court's final order was to approve the Waco Kwikform Curtis Island Greenfields Agreement 2014, allowing the parties to proceed with the implementation of the settlement agreement. The court's decision provided certainty and finality to the parties, enabling them to move forward with their respective interests in a fair and just manner. The approval of the settlement agreement demonstrated the court's commitment to facilitating the resolution of Indigenous land claims in a manner that respects the rights and interests of all parties involved.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established