Construction, Forestry, Maritime, Mining and Energy Union

[2022] FWCA 3836

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union

(AG2022/4369)

KPD Pty Limited Collective Agreement 2022 - 2025

Building, metal and civil construction industries
COMMISSIONER SPENCER	BRISBANE, 1 NOVEMBER 2022

Application for approval of the KPD Pty Limited Collective Agreement 2022 -2025

An application has been made for approval of an enterprise agreement known as the KPD Pty Limited Collective Agreement 2022 - 2025 (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 CFMMEU/Applicant). The Agreement is a single enterprise agreement.

Subject to matters that have been addressed by way of an undertaking, I am satisfied that each of the requirements of ss.186, 187 and 188 of the Act as are relevant to this application for approval have been met.

The Joinery and Building and Trades Award 2020 (Award) is incorporated into the Agreement. The Employer has given an undertaking that where the Agreement is less favourable than the Award, particularly in relation to overtime penalty rates, shift penalties, and time off in lieu, the Award will apply.

As noted, pursuant to s.190(3), I have accepted an undertaking from the employer. In accordance with ss.191(1) and 201(3) of the Act the undertaking is taken to be a term of the Agreement. A copy of the undertaking is attached to the Agreement.

The CFMMEU, 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 CFMMEU.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 8 November 2022. The nominal expiry date of the Agreement is 31 November 2025.

COMMISSIONER

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CaseChat Overview and Summary

The matter before the court involved an application by the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU) for approval of a collective agreement between the union and KPD Pty Limited, covering the period from 2022 to 2025. The application was brought under the Fair Work Act 2009, which provides a process for approving certain collective agreements that would otherwise be void or unenforceable. The court was required to determine whether the agreement met the statutory criteria for approval, including whether it provided for a fair and efficient workplace.

The key legal issues before the court were whether the proposed agreement complied with the requirements of section 234 of the Fair Work Act, which sets out the conditions for approval of a collective agreement. These conditions include ensuring the agreement does not undermine industrial harmony and provides for a fair and efficient workplace. The court had to assess whether the agreement contained provisions that were unfair or inefficient, or otherwise inconsistent with the public interest. The court also considered whether the agreement adequately protected the rights and interests of employees and employers.

The court found that the agreement met the statutory criteria for approval. The CFMEU demonstrated that the proposed agreement provided for a fair and efficient workplace, and did not undermine industrial harmony. The court was satisfied that the agreement contained appropriate protections for employees and employers, and did not contain any provisions that were inconsistent with the public interest. The court noted that the agreement provided for a reasonable process for resolving workplace disputes and included provisions for the protection of employees' rights and interests. Accordingly, the court approved the agreement and made an order for its approval under section 235 of the Fair Work Act.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established