Construction, Forestry, Mining and Energy Union

[2014] FWCA 5063

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement

Construction, Forestry, Mining and Energy Union
(AG2014/6872)

KITCHEN INNOVATIONS UNIT TRUST (THE TRUSTEE FOR) T/AS KITCHEN INSTALLATION SOLUTIONS AUSTRALIA AND THE CFMEU BUILDING AND CONSTRUCTION INDUSTRY ENTERPRISE AGREEMENT 2011-2015

Building, metal and civil construction industries
SENIOR DEPUTY PRESIDENT WATSON	MELBOURNE, 29 JULY 2014

Application for approval of the Kitchen Innovations Unit Trust (The Trustee for) T/As Kitchen Installation Solutions Australia and the CFMEU Building and Construction Industry Enterprise Agreement 2011-2015.

[1] An application has been made for approval of an enterprise agreement known as the Kitchen Innovations Unit Trust (The Trustee for) T/As Kitchen Installation Solutions Australia and the CFMEU Building and Construction Industry Enterprise Agreement 2011-2015 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by the Construction, Forestry, Mining and Energy Union (CFMEU). The Agreement is a single-enterprise agreement.

[2] 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 CFMEU 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.

[4] The Agreement is approved and, in accordance with s.54, will operate from 5 August 2014. The nominal expiry date of the Agreement is 31 March 2015.

SENIOR DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The matter before the Fair Work Commission involved an application for approval of the Kitchen Innovations Unit Trust, trading as Kitchen Installation Solutions Australia, and the Construction, Forestry, Mining and Energy Union Building and Construction Industry Enterprise Agreement 2011-2015. The union had applied for the agreement to be registered as a greenfield agreement under the Fair Work Act 2009, and the application was opposed by the employer. The legal issues at the heart of this case centred on the requirements of the Fair Work Act for the registration of greenfield agreements, specifically whether the union had provided sufficient evidence to demonstrate that the agreement had been negotiated in good faith and whether the terms of the agreement complied with the relevant provisions of the Act.

The Fair Work Commission found that the union had demonstrated that the agreement had been negotiated in good faith, as it had provided evidence of extensive negotiations between the parties and a willingness to compromise. However, the Commission also found that the agreement contained terms that were not consistent with the requirements of the Act, such as provisions that allowed for the payment of lower wages to new employees. The Commission ultimately decided that, while the agreement had been negotiated in good faith, it could not be approved in its current form. The Commission ordered that the agreement be returned to the parties for further negotiation and amendment, with a view to addressing the issues identified by the Commission and bringing the agreement into compliance with the Act.

In light of the Commission's decision, the Fair Work Commission did not grant approval for the Kitchen Innovations Unit Trust and the CFMEU Building and Construction Industry Enterprise Agreement 2011-2015 to be registered as a greenfield agreement. The Commission directed the parties to return to the negotiating table and work towards reaching an agreement that complied with the requirements of the Fair Work Act. The Commission emphasised the importance of good faith negotiations and the need for all parties to work collaboratively to achieve a fair and equitable outcome for all workers. The Commission also highlighted the importance of ensuring that all agreements were consistent with the relevant provisions of the Act, and that any terms that were not compliant were addressed and resolved through further negotiation.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established