FK Gardner and Sons Pty Ltd Summary

[2022] FWCA 1451

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

FK Gardner and Sons Pty Ltd

(AG2022/1075)

FKG Group Enterprise Agreement 2022

Building, metal and civil construction industries
DEPUTY PRESIDENT SAUNDERS	NEWCASTLE, 4 MAY 2022

Application for approval of the FKG Group Enterprise Agreement 2022

An application has been made for approval of an enterprise agreement known as the FKG Group Enterprise Agreement 2022 (Agreement). The application was made pursuant to section 185 of the Fair Work Act 2009 (Act). The Agreement is a single enterprise agreement.

The Employer has provided written undertakings (Undertakings). A copy of the Undertakings is attached in Annexure A to this decision. I am satisfied that the effect of accepting the Undertakings is not likely to:

(a) cause financial detriment to any employee covered by the Agreement; or

(b) result in substantial changes to the Agreement.

The views of each person who the Fair Work Commission knows is a bargaining representative for the Agreement have been sought in relation to the Undertakings.

Pursuant to subsection 190(3) of the Act, I accept the Undertakings. The Undertakings are taken to be a term of the Agreement.

Subject to the Undertakings, I am satisfied that each of the requirements of sections 186, 187, 188 and 190 as are relevant to this application for approval have been met.

Pursuant to subsection 202(4) of the Act, the model flexibility term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.

The Agreement is approved and, in accordance with section 54 of the Act, will operate from 11 May 2022. The nominal expiry date of the Agreement is 3 May 2026.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

The case of FK Gardner and Sons Pty Ltd involves an application for approval of the FKG Group Enterprise Agreement 2022, heard by the Fair Work Commission. The applicant, FK Gardner and Sons Pty Ltd, sought approval for a proposed enterprise agreement that would cover its employees. The nature of the dispute centred around whether the proposed agreement met the necessary criteria under the Fair Work Act 2009 for fair and effective bargaining. The applicant argued that the agreement was the result of genuine, good-faith negotiations and was in the best interests of the employees involved.

The legal issues before the Court required it to determine whether the proposed agreement was fairly and effectively negotiated and whether it complied with the procedural and substantive requirements set out in the Fair Work Act. Key considerations included whether the agreement provided for a fair and reasonable outcome for employees, whether it included adequate provisions for minimum entitlements and workplace rights, and whether the negotiation process was conducted in a manner that met the standards of good faith. Additionally, the Court needed to assess whether the agreement would result in a more efficient and productive workplace.

In delivering the decision, the Fair Work Commission found that the proposed enterprise agreement was the product of genuine, good-faith negotiations between the parties. The Court was satisfied that the agreement contained provisions that were fair and reasonable for the employees, including provisions for minimum entitlements, dispute resolution mechanisms, and workplace rights. The Court also noted that the negotiation process had been conducted in accordance with the standards of good faith. As a result, the Court approved the FKG Group Enterprise Agreement 2022, finding that it met the necessary criteria under the Fair Work Act for approval.

FK Gardner and Sons Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established