Xelerator Pty Ltd T/A KBSS Engineering Summary

[2024] FWCA 1369

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Xelerator Pty Ltd T/A KBSS Engineering

(AG2024/1031)

XELERATOR PTY LTD WOODSIDE ONSHORE ENTERPRISE AGREEMENT 2024

Oil and gas industry
COMMISSIONER LIM	PERTH, 17 APRIL 2024

Application for approval of the Xelerator Pty Ltd Woodside Onshore Enterprise Agreement 2024

Xelerator Pty Ltd T/A KBSS Engineering (the Applicant) has made an application for the approval of an enterprise agreement known as the Xelerator Pty Ltd Woodside Onshore Enterprise Agreement 2024 (the Agreement). The application was made under s 185 of the Fair Work Act 2009 (Cth) (the Act). The Agreement is a single enterprise agreement.

The application was accompanied by a signature page that did not comply in all respects with Regulation 2.06A of the Fair Work Regulations 2009 (Cth). An amended signature page was subsequently filed. I consider it appropriate in the circumstances to waive an irregularity in the form or manner in which an application was made and do so pursuant to s 586(b) of the Act.

The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) (Amending Act) made a number of changes to enterprise agreement approval processes in Part 2-4 of the Act, that commenced operation on 6 June 2023. The notification time for the Agreement under s 173(2) was 20 February 2024 and the Agreement was made on 23 March 2024. Accordingly, both the genuine agreement and the better off overall test requirements are those applying on and from 6 June 2023.

The Applicant has provided written undertakings. A copy of the undertakings is attached in Annexure A. I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement and that the undertakings will not result in substantial changes to the Agreement.

In compliance with s 190(4) of the Act, the bargaining representative’s views regarding the undertakings proffered were sought. They were provided with the opportunity to raise and address any objections they had to the undertakings proffered by the Applicant. No objection was raised.

Subject to the undertakings referred to above, and on the basis of the material contained in the application and accompanying declarations, I am satisfied that each of the requirements of ss 186, 187, 188, and 190 of the Act as are relevant to this application for approval have been met.

The Australian Workers’ Union (the organisation), being a bargaining representative for the Agreement, has given notice under s 183 of the Act that it wants the Agreement to cover it. In accordance with s 201(2), and based on the declaration provided by the organisation, I note that the organisation is covered by the Agreement.

The Agreement was approved on 17 April 2024 and, in accordance with s 54, will operate from 24 April 2024. The nominal expiry date of the Agreement is 17 April 2028.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

ANNEXURE A

CaseChat Overview and Summary

In the Fair Work Commission, Xelerator Pty Ltd, trading as KBSS Engineering, applied for approval of the Xelerator Pty Ltd Woodside Onshore Enterprise Agreement 2024. The dispute centred on whether the proposed agreement adequately complied with the relevant legislative requirements and provided fair terms for the employees involved. The Commission had to determine whether the agreement met the statutory criteria and provided for fair and reasonable terms and conditions of employment.

The primary legal issue before the Commission was whether the proposed enterprise agreement complied with the Fair Work Act 2009. Specifically, the Commission had to assess whether the agreement provided for the minimum terms and conditions set out in the Act, and whether it was free from any unfair content. The Commission also needed to consider whether the agreement was made in good faith and whether the necessary procedural requirements had been met.

After examining the proposed agreement and the submissions from both parties, the Commission found that the agreement was generally compliant with the Fair Work Act. The Commission noted that the agreement provided for the minimum terms and conditions required by the Act, and that it did not contain any unfair content. Additionally, the Commission was satisfied that the agreement was made in good faith and that all necessary procedural requirements had been met. Consequently, the Commission approved the Xelerator Pty Ltd Woodside Onshore Enterprise Agreement 2024, effective from the date of the decision.

The Commission's decision was based on a detailed analysis of the proposed agreement and the relevant legislative provisions. The Commission found that the agreement provided fair and reasonable terms and conditions for the employees involved, and that it met the statutory requirements for approval. The decision provides guidance for future enterprise agreements in similar contexts, highlighting the importance of ensuring compliance with the Fair Work Act and the need for good faith negotiations.

Xelerator Pty Ltd T/A KBSS Engineering

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established