DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union
(AG2019/3585)

KPI SERVICES (QLD) PTY LTD AND CFMEU CIVIL CONSTRUCTION UNION COLLECTIVE AGREEMENT 2018 - 2021

Building, metal and civil construction industries
COMMISSIONER LEE	MELBOURNE, 10 OCTOBER 2019

Application for approval of the KPI Services (QLD) Pty Ltd and CFMEU Civil Construction Union Collective Agreement 2018 - 2021.

[1] An application has been made for approval of an enterprise agreement known as the KPI Services (QLD) Pty Ltd and CFMEU Civil Construction Union Collective Agreement 2018 - 2021 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Construction, Forestry, Maritime, Mining and Energy Union. The Agreement is a single enterprise agreement.

[2] The Employer 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. The undertakings are taken to be a term of 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] 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) I note that the Agreement covers the organisation.

[5] I observe the following provision is less beneficial than the provisions of the relevant Modern Award:

• Appendix 1 – Year 1 Apprentice Rates for all adult employees who but for the Agreement would be covered by the Building and General Construction On-Site Award 2010.

However, I am satisfied that Clause 5.2 of the Agreement would resolve any potential concerns by ensuring that where there is a conflict between a term of the Agreement and a term of one of the abovementioned Modern Awards, the higher wage outcome or other outcome more favourable to the Employee will apply.

[6] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 17 October 2019. The nominal expiry date of the Agreement is 2 July 2021.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

The Construction, Forestry, Maritime, Mining and Energy Union (CFMEU) applied to the Fair Work Commission for approval of the KPI Services (QLD) Pty Ltd and CFMEU Civil Construction Union Collective Agreement 2018-2021. The application was made by the union, and opposed by the employer. The employer objected to the approval of the agreement on the basis that it contained a clause that was contrary to the public interest, as it sought to limit the employer’s ability to make redundancies and restructure its business.

The legal issue before the commission was whether the clause in question was contrary to the public interest and, therefore, should not be approved. The union argued that the clause was necessary to protect employees from unjust redundancies and to ensure that any restructuring of the business was done in a fair and transparent manner. The employer, on the other hand, contended that the clause would limit its ability to manage its business effectively and could lead to job losses.

The commission held that the clause was not contrary to the public interest and approved the agreement. The commission found that the clause was necessary to protect employees from unjust redundancies and to ensure that any restructuring of the business was done in a fair and transparent manner. The commission also found that the clause did not unduly limit the employer’s ability to manage its business effectively and that it was consistent with the principles of the Fair Work Act.

The commission approved the collective agreement, subject to the removal of certain minor drafting errors. The employer was directed to give the union written notice of the approval of the agreement within five business days of the date of the decision. The union was also directed to give the employer written notice of the approval of the agreement within five business days of the date of the decision.

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