Xelerator Pty Ltd

[2016] FWCA 814

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Xelerator Pty Ltd T/A KBSS Engineering

(AG2016/52)

KBSS ENGINEERING WHEATSTONE PROJECT AGREEMENT 2015

Building, metal and civil construction industries

COMMISSIONER ROE

MELBOURNE, 8 FEBRUARY 2016

Application for approval of the KBSS Engineering Wheatstone Project Agreement 2015.

[1] An application has been made for approval of an enterprise Agreement known as the

KBSS Engineering Wheatstone Project Agreement 2015 (Agreement). The application was

made pursuant to s.185 of the Fair Work Act 2009 (Act). It has been made by Xelerator Pty

Ltd T/A KBSS Engineering.

[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 Australian Workers’ Union 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.202(4) of the Act, the model flexibility term prescribed by the Fair Work

Regulations 2009 is taken to be a term of the Agreement.

[6] Pursuant to s.53(2)(b) I note the Agreement was made with The Australian Workers’

Union and that the Agreement covers this organisation.
[2016] FWCA 814

[7] The Agreement is approved and, in accordance with s.54, will operate from 15

February 2016. The nominal expiry date of the Agreement is 1 September 2018.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Xelerator Pty Ltd, trading as KBSS Engineering, applied for approval of the KBSS Engineering Wheatstone Project Agreement 2015 (Agreement) under section 185 of the Fair Work Act 2009. The Agreement is a greenfield agreement intended to cover a new project. The application was made to Commissioner Roe, sitting in Melbourne, who was required to determine whether the Agreement met the requirements for approval under the Act, and whether it was in the public interest to approve the Agreement.

The legal issues before the court were whether the Agreement met the requirements for approval under sections 186 and 187 of the Fair Work Act 2009, and whether it was in the public interest to approve the Agreement. The court also needed to determine whether the Australian Workers’ Union was entitled to represent the industrial interests of the majority of employees covered by the Agreement.

The court found that the requirements for approval under sections 186 and 187 of the Fair Work Act 2009 had been met. The court was satisfied that the Australian Workers’ Union was entitled to represent the industrial interests of a majority of employees covered by the Agreement, and that it was in the public interest to approve the Agreement. The court also found that the group of employees covered by the Agreement was fairly chosen, and that the model consultation and flexibility terms prescribed by the Fair Work Regulations 2009 were incorporated into the Agreement. The court approved the Agreement, which will operate from 15 February 2016, with a nominal expiry date of 1 September 2018.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established