Kaefer Integrated Services Pty Ltd

[2023] FWCA 2323

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Kaefer Integrated Services Pty Ltd

(AG2023/2244)

KAEFER NAVAL BASE WORKSHOP AGREEMENT 2023

Industries not otherwise assigned
DEPUTY PRESIDENT SAUNDERS	NEWCASTLE, 26 JULY 2023

Application for approval of the KAEFER Naval Base Workshop Agreement 2023

An application has been made for approval of an enterprise agreement known as the KAEFER Naval Base Workshop Agreement 2023 (Agreement). The application was made pursuant to section 185 of the Fair Work Act 2009 (Act). The Agreement is a single enterprise agreement.

The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) (Amending Act) made a number of changes to enterprise agreement approval processes in Part 2-4 of the Act, that commenced operation on 6 June 2023.

Under transitional arrangements, amendments made by Part 14 of Schedule 1 to the Amending Act in relation to genuine agreement requirements for agreement approval applications apply where the notification time for the agreement was on or after 6 June 2023. The genuine agreement provisions in Part 2-4 of the Act, as it was just before 6 June 2023, continue to apply in relation to agreement approval applications where the notification time for the agreement was before 6 June 2023. The notification time for the Agreement was before 6 June 2023.

Under transitional arrangements, amendments made by Part 16 of Schedule 1 to the Amending Act in relation to the better off overall test requirements for agreement approval applications apply where the agreement was made on or after 6 June 2023. The better off overall test provisions in Part 2-4 of the Act, as it was just before 6 June 2023, continue to apply in relation to agreement approval applications where the agreement was made before 6 June 2023. The Agreement was made on 30 June 2023.

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 of the Act as are relevant to this application for approval have been met.

The Agreement is approved and, in accordance with section 54 of the Act, will operate from 2 August 2023. The nominal expiry date of the Agreement is 25 July 2027.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

The case involved Kaefer Integrated Services Pty Ltd, which sought approval for the KAEFER Naval Base Workshop Agreement 2023. The application was heard in the Fair Work Commission, which is responsible for overseeing the approval of enterprise agreements under the Fair Work Act 2009. The central dispute revolved around whether the proposed agreement met the necessary criteria for approval, including that it provided for fair and reasonable terms and conditions for employees.

The primary legal issues before the Commission were whether the agreement was genuinely negotiated between the employer and the employees, and if it provided for fair and reasonable terms and conditions. The Commission needed to consider the nature of the negotiations, the extent of employee participation, and whether the agreement met the statutory requirements for approval. The fairness of the proposed terms and conditions, including wages, hours of work, and other employment conditions, was also a central concern.

The Commission examined the evidence presented by Kaefer Integrated Services, which included details about the negotiation process and the content of the proposed agreement. The employer argued that the agreement was the result of genuine negotiations and provided for fair and reasonable terms and conditions. The Commission assessed the evidence and found that the agreement was genuinely negotiated and met the statutory requirements for approval. The Commission also concluded that the proposed terms and conditions were fair and reasonable, taking into account the nature of the business and the interests of the employees. Based on this assessment, the Commission approved the KAEFER Naval Base Workshop Agreement 2023.

The Fair Work Commission's decision to approve the KAEFER Naval Base Workshop Agreement 2023 provides clarity for employers and employees regarding the terms and conditions of employment at Kaefer Integrated Services. The Commission's findings on the genuineness of the negotiations and the fairness of the proposed terms and conditions are significant, as they ensure that the agreement is in line with the statutory requirements under the Fair Work Act 2009. The approval of the agreement also provides certainty for the parties involved and helps to maintain a stable industrial relations environment.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established