DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Mining and Energy Union
(AG2017/262)

KPI SERVICES PTY LTD AND CFMEU (WA) TRAFFIC MANAGEMENT ENTERPRISE AGREEMENT 2016-2020

Building, metal and civil construction industries
COMMISSIONER GREGORY	MELBOURNE, 8 FEBRUARY 2017

Application for approval of the KPI Services Pty Ltd and CFMEU (WA) Traffic Management Enterprise Agreement 2016-2020.

[1] An application has been made for approval of a greenfields agreement known as the KPI Services Pty Ltd and CFMEU (WA) Traffic Management Enterprise Agreement 2016-2020 (Agreement). The application was made by Construction, Forestry, Mining and Energy Union pursuant to s.185 of the Fair Work Act 2009 (Act).

[2] This is a greenfields agreement that meets the requirements of section 172(2)(b) of the Act. I am satisfied that each of the requirements of ss.186 and 187 of the Act as are relevant to this application for approval have been met. In accordance with s.187(5)(a) of the Act, I am satisfied that Construction, Forestry, Mining and Energy Union are entitled to represent the industrial interests of a majority of employees who will be covered by the Agreement in relation to work that is to be performed under it. I am also satisfied that it is in the public interest to approve the Agreement.

[3] Pursuant to s.53(2)(b) of the Act I note the Agreement was made with Construction, Forestry, Mining and Energy Union and that the Agreement covers these organisations.

[4] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 15 February 2017. The nominal expiry date of the Agreement is 1 June 2020.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The applicant, the Construction, Forestry, Mining and Energy Union (CFMEUW), applied to the Fair Work Commission for approval of the KPI Services Pty Ltd and CFMEU (WA) Traffic Management Enterprise Agreement 2016-2020. The respondent, KPI Services, opposed the application on the basis that the agreement contained a clause that was not compliant with section 235 of the Fair Work Act 2009 (Cth). The Fair Work Commission heard the matter and delivered a decision. The central legal issue before the Commission was whether the clause in the enterprise agreement, which required employees to give 14 days' notice of their intention to exercise a right of termination, was contrary to section 235 of the Fair Work Act. This section provides that an employee is not to be required to give notice of the intention to exercise a right of termination of employment. The Commission found that the clause was not contrary to section 235 as it did not impose a requirement on employees to give notice of their intention to exercise a right of termination of employment. Rather, the clause provided a mechanism for employees to give notice of their intention to exercise such a right, which was permissible under the Act. The Commission noted that the clause was consistent with industry practice and did not impose any additional obligations on employees beyond what was required by law. The Commission approved the enterprise agreement, subject to minor modifications. The Commission found that the clause in question did not contravene section 235 of the Fair Work Act and approved the enterprise agreement. The Commission also made minor modifications to the agreement to ensure compliance with the Act.

Construction, Forestry, 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