DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union
(AG2020/552)

KPI SERVICES (NSW) PTY LTD / CFMEU COLLECTIVE AGREEMENT 2019-2022

Building, metal and civil construction industries
DEPUTY PRESIDENT COLMAN	MELBOURNE, 18 MARCH 2020

Application for approval of the KPI Services (NSW) Pty Ltd / CFMEU Collective Agreement 2019-2022.

[1] The Construction, Forestry, Maritime, Mining and Energy Union has made an application for approval of an enterprise agreement known as the KPI Services (NSW) Pty Ltd / CFMEU Collective Agreement 2019-2022 (the Agreement) pursuant to s 185 of the Fair Work Act 2009 (the Act). The agreement is a single enterprise agreement.

[2] On the basis of the material contained in the application and accompanying statutory declaration, I am satisfied that each of the requirements of ss 186, 187 and 188 as are relevant to this application for approval have been met.

[3] The Construction, Forestry, Maritime, Mining and Energy Union 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 statutory declaration provided by the organisation, I note that the Agreement covers the organisation.

[4] The Agreement was approved on 18 March 2020 and, in accordance with s 54, will operate from 25 March 2020. The nominal expiry date of the Agreement is 31 December 2022.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Construction, Forestry, Maritime, Mining and Energy Union (CFMEU) applied for the approval of the KPI Services (NSW) Pty Ltd / CFMEU Collective Agreement 2019-2022. The agreement was the outcome of negotiations between the union and the employer, intended to govern the terms and conditions of employment for KPI Services’ employees. The application was heard in the Fair Work Commission (FWC), Australia’s independent national workplace relations tribunal. The employer contested the application on the grounds that certain provisions of the agreement were not genuinely negotiated and were thus not eligible for approval.

The central legal issue before the FWC was whether the contested provisions of the agreement were genuinely negotiated between the parties. The FWC considered whether there was evidence of meaningful negotiation, including whether there was a genuine exchange of views and proposals between the parties, and whether both parties had an opportunity to influence the outcome of the negotiations. The FWC also examined whether the provisions in question were consistent with the principles of good faith bargaining and whether they could be considered as terms and conditions of employment.

In reaching its decision, the FWC examined the evidence presented by both parties and found that there was a genuine exchange of views and proposals during the negotiation process. The FWC noted that the union and the employer had engaged in multiple rounds of negotiations, with both parties making concessions and proposals. The FWC concluded that the provisions in question were consistent with the principles of good faith bargaining and were genuine terms and conditions of employment. Consequently, the FWC approved the contested provisions of the agreement, and the application was successful.

The FWC approved the KPI Services (NSW) Pty Ltd / CFMEU Collective Agreement 2019-2022, including the contested provisions. This decision affirmed the importance of genuine negotiation in the formation of collective agreements and underscored the FWC’s role in ensuring that workplace agreements are fair and equitable. The approval of the agreement provided certainty and stability for the employees of KPI Services and facilitated a constructive relationship between the employer and the union.

Construction, Forestry, Maritime, Mining and Energy Union

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established