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Fair Work Act 2009
s.185—Enterprise agreement
KAEFER Integrated Services Pty Ltd
(AG2017/2240)
KIS NORTH WEST ONSHORE OPERATIONS ENTERPRISE
AGREEMENT 2017-2021
Building, metal and civil construction industries
COMMISSIONER GREGORY MELBOURNE, 21 JULY 2017
Application for approval of the KIS North West Onshore Operations Enterprise Agreement
2017-2021.
[1] An application has been made for approval of an enterprise agreement known as the
KIS North West Onshore Operations Enterprise Agreement 2017-2021 (the Agreement). The
application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made
by KAEFER Integrated Services Pty Ltd. The Agreement is a single enterprise agreement.
[2] 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.
[3] Subject to the undertakings referred to above, I am satisfied that each of the
requirements of ss.186, 187, 188 and 190 as are relevant to this application for approval have
been met.
[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] It is noted that the Construction, Forestry, Mining and Energy Union (“CFMEU”)
sought to be heard in regard to the application. In a letter dated 30 June 2017 it acknowledged
it was not a bargaining representative for the Agreement. However, it continued to indicate
that it represents construction workers in the construction industry who work for or may work
for the Applicant. It also indicated that it has an “interest in ensuring that conditions in the
construction industry are consistent with the legislative requirements and are fair to the people
it represents.” It also indicated that after reviewing the forms F16 and F17, and the terms and
conditions contained in the proposed Agreement, it was of the view that it does not meet the
requirements of the “better off overall” test. It concluded by indicating that it considered it
[2017] FWCA 3839 [Note: This decision has been quashed - refer to Full
Bench decision dated 20 November 2017 [[2017] FWCFB 5630]
DECISION
E AUSTRALIA FairWork Commission
https://www.fwc.gov.au/documents/decisionssigned/html/2017fwcfb5630.htm
[2017] FWCA 3839
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appropriate under section 590(1) of the Fair Work Act for the Commission to convene a
hearing in order to consider the Union’s views.
[6] The Applicant provided a letter to the Commission dated 4 July 2017 in which it
objected to the request by the CFMEU to be heard in regard to the application. It indicated,
inter alia, that the CFMEU was not a bargaining representative for the proposed Agreement,
and the employees had instead appointed an alternative bargaining representative. It also
noted that the CFMEU had not identified any specific reason why it believed the requirements
of the “better off overall” test had not been satisfied.
[7] The issue about the right to be heard, other than as a bargaining representative, was
obviously dealt with at length in the Full Bench decision in Construction, Forestry, Mining
and Energy Union v Collinsville Coal Operations Pty Ltd [2014] FWCFB 7940. The Full
Bench noted in that decision that it is accepted that the Fair Work Act does not provide for
intervention in proceedings before the Commission by a non– party. However, s. 590 provides
that the Commission may inform itself in relation to any matter before it in such manner as it
considers appropriate. The Full Bench then continued to deal with the grounds relied upon by
the CFMEU as to why it should be heard.
[8] It indicated in conclusion, that any right, interest, or legitimate expectation that might
give rise to a right to be heard must be identified and understood against the framework of
enterprise bargaining and agreement making established by the Act. In this context it noted
that agreements are made principally between an employer and employees, and that enterprise
agreements operate primarily at the enterprise level, and do not create rights of general
application across an industry.
[9] It continued to indicate that whether a union, that is not a bargaining representative,
has a right to be heard in relation to an application for approval will depend on the
circumstances in each case.
[10] The CFMEU in the present matter has set out the reasons why it believes it has a right
to be heard in regard to the present application. Having had regard to the decision of the Full
Bench in Collinsville I am not satisfied that it should be given the opportunity to be heard in
regard to the application for approval of the agreement on the basis that it has not identified or
disclosed any legitimate reason or ground that would warrant it being heard.
[11] The Agreement is approved and, in accordance with s.54 of the Act, will operate from
28 July 2017. The nominal expiry date of the Agreement is 20 July 2021.
COMMISSIONER
Printed by authority of the Commonwealth Government Printer
Price code C, AE424955 PR594740
THE FAIR WORK COMMISSION THE SEAL
[2017] FWCA 3839
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ANNEXURE A
KAEFER KAEFER Integrated Services Pty. Ltd. ABN 83 009 046 191 Your Reference: Phone: +61 (0) 8 9224 4600 Fax: +61 (0) 8 9224 4690 Date: 19 July 2017 IN THE FAIR WORK COMMISSION FWC Matter No .: AG2017/2240 - KIS North West Onshore Operations Enterprise Agreement Section 185 - Application for approval of a single enterprise agreement Undertaking-Section 190 KAEFER Integrated Services Pty Ltd, give the following undertakings with respect to the KIS North West Onshore Operations Enterprise Agreement ("the Agreement"): 1. | Adie Kadir have the authority given to me by KAEFER Integrated Services Pty Ltd to provide this undertaking in relation to the application before the Fair Work Commission. 2. The following paragraphs will form part of clause 11.4 of the KIS North West Onshore Operations Enterprise Agreement: A shift worker means an Employee for the time being engaged to work in a system of shifts, being afternoon or night shifts inati
Afternoon shift means a shift commencing at or after 1.00 pm and before 3.00 pm Nightshift means a shift commencing at or after 3.00 pm and before 11.00 pm Morning shift means a shift commencing at or after 4:30am and before 6:00am Early morning shift means a shift commencing on or after 11:00am and before 1:00pm A shift worker for the purposes of the National Employment Standards (NES). 3. The following will form part of clause 22.1 b) Apprentices - Percentage of Tradesperson Rate Year 4 year term 3 year term 1 55% 55% 2 65% 75% 3 75% 90% 4 90% 4. The following paragraphs will replace clause 22.2 a) of the KIS North West Onshore Operations Enterprise Agreement: Tool Allowance An all-purpose tool allowance of $0.43 per hour is payable to a tradesperson (other than an apprentice where the allowance amount is defined in subclause 21.2) required to provide their own tools of trade. This allowance shall be reviewed by the Employer annually so as to ensure that, as a minimum, parity is maintained with the Weighted Average Eight Capital Cities Consumer Price Index KAEFER Integrated Services Pty. Lid ABN 83 009 046 191 HEAD OFFICE Unit 4 156 Kewdale Road KEWDALE WA 6105 Phone: +61 8 9224-4600, Fax: +61 8 9224-4690 E-mail: info@kaefer.com.au Website: www.kaefer.com.au
[2017] FWCA 3839
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Letter To FWC KAEFER Date: 19/07/2017 Page: 2/3 5. The following paragraphs will replace clause 22.2 b) of the KIS North West Onshore Operations Enterprise Agreement: Leading Hand Allowance Leading Hand in charge of 2 to 5 employees - $1.13 per hour - all-purpose Leading Hand in charge of 6 to 10 employees - $1.43 per hour - all-purpose Leading Hand in charge of more than 10 employees - $1.92 per hour - all-purpose These allowances shall be reviewed by the Employer annually so as to ensure that, as a minimum, parity is maintained with the Weighted Average Eight Capital Cities Consumer Price Index. 6. The following paragraphs will replace clause 22.2 e) of the KIS North West Onshore Operations Enterprise Agreement: Asbestos Allowance An Allowance of $3.15 per hour flat shall be paid to Employees while engaged in the removal of Friable asbestos. The Allowance is payable at this rate irrespective of the time or day on which the work is performed i.e. loadings do not apply. This allowance shall be reviewed by the Employer annually so as to ensure that, as a minimum, parity is maintained with the Weighted Average Eight Capital Cities Consumer Price Index 7. Base hourly rates enclosed to this email will replace base hourly rates identified Table A of the KIS
TIL. Table A: Classification Minimum Ordinary Hourly Rate of Pay Sheet Metal Worker First Class Industrial Painter $23.40 All other trades Advanced Scaffolder/Rigger. Blaster Sheet Metal Worker Second Class $22.80 Cryogenic Lagger. Asbestos Removalist Dogman Intermediate Scaffolder/Rigger Insulator $22.10 Storeman Basic Scaffolder/Rigger. Brush Hand Non-Cryogenic Lagger $21.80 Tradesperson's Assistant General Labourers
[2017] FWCA 3839
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Letter To FWC KAEFER Date: 19/07/2017 Page: 3/3 These undertakings are provided on the basis of issues raised by the Fair Work Commission in the application before the Fair Work Commission. A.B. Kade Employer Signature Employee Bargaining Representative Signature 19.Juli 2017 20 JULY 2017 Date Date
£
