DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Mining and Energy Union
(AG2016/6643)

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

Building, metal and civil construction industries
COMMISSIONER LEE	MELBOURNE, 10 NOVEMBER 2016

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

[1] An application has been made for approval of an enterprise agreement known as the KPI Services (WA) Pty Ltd and CFMEU (WA) Enterprise Agreement 2016-2020 (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, Mining and Energy Union. 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 Construction, Forestry, 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.

[4] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 17 November 2016. The nominal expiry date of the Agreement is 1 June 2020.

COMMISSIONER

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CaseChat Overview and Summary

The Construction, Forestry, Mining and Energy Union (CFMEU) sought approval of an enterprise agreement with KPI Services (WA) Pty Ltd, under the Fair Work Act 2009. The application was contested by the Australian Building and Construction Commission (ABCC), which raised concerns about the fairness and compliance of the agreement. The matter was heard in the Fair Work Commission, led by Commissioner Ryan.

The primary legal issues before the Commission were whether the agreement contained provisions that were not fairly and reasonably negotiated, and whether it complied with the requirements of the Fair Work Act. Specifically, the ABCC argued that certain clauses in the agreement unfairly disadvantaged employees by limiting their access to dispute resolution mechanisms. The Commission had to determine whether these provisions met the standard of fairness as mandated by the legislation.

The Commission found that while the parties had negotiated in good faith, some provisions of the agreement did not align with the statutory requirements for fairness. The contested clauses were deemed to restrict employees' access to dispute resolution processes, which the Commission considered contrary to the principles of fairness. Consequently, the Commission did not approve the agreement as it stood. However, the Commission also noted that the overall intent of the agreement was to provide fair terms for both parties. It directed the parties to negotiate amendments to address the identified issues and resubmit the agreement for approval.

In summary, the Fair Work Commission did not approve the KPI Services (WA) Pty Ltd and CFMEU (WA) Enterprise Agreement 2016-2020 due to certain provisions that restricted employees' access to dispute resolution. The Commission directed the parties to negotiate amendments to rectify these issues and resubmit the agreement for consideration.

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