BR & I BP KWINANA MAINTENANCE ENTERPRISE AGREEMENT 2026

Application for approval of the BR & I BP Kwinana Maintenance Enterprise Agreement 2026

[1] An application has been made for approval of an enterprise agreement known as the BR & I BP Kwinana Maintenance Enterprise Agreement 2026 (the Agreement). The Application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by BR & I Pty Limited (the Applicant). The Agreement is a single enterprise agreement.

[2] 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 Fair Work Act, that commenced operation on 6 June 2023. The notification time for the Agreement under s.173(2) was 29 May 2025 and the Agreement was made on 2 March 2026. Accordingly, both the genuine agreement and the better off overall test requirements are those applying on and from 6 June 2023.

[3] The Applicant expressed the view that the Agreement passes the Better Off Overall Test (BOOT) and provided a summary of why it expressed this view. Consistent with s.193A(3) of the Act I have given consideration to this view when determining whether the Agreement passes the BOOT. The "Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union, and the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services of Australia - Electrical, Energy and Services Division - Western Australia Divisional Branch, who were bargaining agents, did not express a view as to whether the Agreement passes the BOOT. The Construction, Forestry and Maritime Employees Union - Construction and General Division - Western Australia Divisional Branch, who were also a bargaining agent, expressed a view as to whether the Agreement passes the BOOT.

[4] Two potential BOOT issues were identified during the assessment process. The first related to early morning and night shifts as per the Building and Construction General On-site Award. The Applicant advises and I accept that no employees are currently engaged to work such shifts and it is not reasonably foreseeable that any such shifts will be worked during the life of the Agreement. The second issue related to Sunday penalties which may have presented an issue where Sundays are worked in isolation or in conjunction with Saturdays. The Applicant advises and I accept that part time and casual employees are not engaged to work Sundays in isolation or in conjunction with Saturdays and it is not reasonably foreseeable that such shift patterns will be worked during the life of the Agreement. As such, I am satisfied that the two issues are resolved.

[5] There was a small discrepancy in the name of the Agreement used in the NERR. However, I am satisfied this is a minor technical issue and have paid it no regard pursuant to s.188(5) of the Act.

[6] The stand down clause at cl.35 provides a broader set of circumstances under which employees may be stood down than s.524 of the Act. I note that I have advised the Applicant that as a result cl.35.1.4 may be unenforceable. I also note that a question arose as to the operation of clause 11 with respect to deductions of NES entitlements. I have advised the Applicant that s.326 of the Act may operate to prevent such deductions

[7] Given the decision of the Federal Court Full Court in Construction, Forestry and Maritime Employees Union v Australian Industry Group [2025] FCAFC 187, the Agreement delegates' rights term needed to be addressed. Pursuant to s.205A of the Act, I have inserted into the Agreement the new delegates' rights clause from the Manufacturing and Associated Industries and Occupations Award 2020 which was inserted by the Full Bench decision in [2026] FWCFB 5.

[8] The Applicant has provided written undertakings. 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.

[9] Subject to the undertakings referred to above, I am satisfied that each requirement of ss186, 187 and 188 as are relevant to this application for approval have been met. The undertakings are taken to be a term of the Agreement.

[10] The "Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU), the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services of Australia - Electrical, Energy and Services Division - Western Australia Divisional Branch (CEPU-EWA), and the Construction, Forestry and Maritime Employees Union - Construction and General Division - Western Australia Divisional Branch (CFMEU-WA1) each lodged a Form F18 statutory declaration giving notice under s.183 of the Act that it wants the Agreement to cover it. In accordance with s.201(2) of the Act, I note the Agreement covers the AMWU, the CFMEU-WA1 and the CEPU-EWA.

[11] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 17 April 2026. The nominal expiry date of the Agreement is 31 March 2027.

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