KAEFER Integrated Services Pty Ltd - [2017] FWCA 3839

[2017] FWCA 3839 [Note: This decision has been quashed - refer to Full Bench decision dated 20 November 2017 [[2017] FWCFB 5630]

FAIR WORK COMMISSION

decision

Fair Work Act 2009

s.185—Enterprise agreement

KAEFER Integrated Services Pty Ltd

(AG2017/2240)

KIS North West Onshore Operations Enterprise Agreement 2017-2021

Building, metal and civil construction industries
Commissioner Gregory	MELBOURNE, 21 JULY 2017

Application for approval of the KIS North West Onshore Operations Enterprise Agreement 2017-2021.

An application has been made for approval of an enterprise agreement known as the KIS North West Onshore Operations Enterprise Agreement 2017-2021 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by KAEFER Integrated Services Pty Ltd. The Agreement is a single enterprise agreement.

The Applicant has provided written undertakings. A copy of the undertakings is attached in Annexure A. I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement and that the undertakings will not result in substantial changes to the Agreement.

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

Pursuant to s.205(2) of the Act, the model consultation term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.

It is noted that the Construction, Forestry, Mining and Energy Union (“CFMEU”) sought to be heard in regard to the application. In a letter dated 30 June 2017 it acknowledged it was not a bargaining representative for the Agreement. However, it continued to indicate that it represents construction workers in the construction industry who work for or may work for the Applicant. It also indicated that it has an “interest in ensuring that conditions in the construction industry are consistent with the legislative requirements and are fair to the people it represents.” It also indicated that after reviewing the forms F16 and F17, and the terms and conditions contained in the proposed Agreement, it was of the view that it does not meet the requirements of the “better off overall” test. It concluded by indicating that it considered it appropriate under section 590(1) of the Fair Work Act for the Commission to convene a hearing in order to consider the Union’s views.

The Applicant provided a letter to the Commission dated 4 July 2017 in which it objected to the request by the CFMEU to be heard in regard to the application. It indicated, inter alia, that the CFMEU was not a bargaining representative for the proposed Agreement, and the employees had instead appointed an alternative bargaining representative. It also noted that the CFMEU had not identified any specific reason why it believed the requirements of the “better off overall” test had not been satisfied.

The issue about the right to be heard, other than as a bargaining representative, was obviously dealt with at length in…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: KAEFER Integrated Services Pty Ltd [2017] FWCA 3839
Case: [2017] FWCA 3839
Decision Date: 21 JULY 2017

CaseChat Overview and Summary

The matter before the Fair Work Commission involved an application by KAEFER Integrated Services Pty Ltd for the approval of the KIS North West Onshore Operations Enterprise Agreement 2017-2021. The application was made under section 234 of the Fair Work Act 2009. The dispute centered around whether the agreement met the requirements for approval under the legislation, specifically if it contained all the mandated terms and conditions and if it was fair and reasonable in terms of the interests of employees.

The primary legal issues that the Commission had to decide included whether the agreement contained all the prescribed minimum terms and conditions as required by the Fair Work Act. Another significant issue was whether the agreement provided for fair and reasonable terms in relation to the interests of the employees, including their wages, hours of work, leave entitlements, and other employment conditions. Additionally, the Commission needed to determine if there was any provision in the agreement that contravened the Fair Work Act or any other relevant laws.

In its decision, the Fair Work Commission considered the provisions of the Fair Work Act and relevant regulations. The Commission found that the agreement contained all the prescribed minimum terms and conditions and did not include any term that was contrary to the Act. It was also determined that the agreement provided for fair and reasonable terms for the employees, taking into account their interests. The Commission concluded that the agreement was in accordance with the statutory requirements and was fair and reasonable for the employees. Consequently, the application for approval was granted.

The final orders of the Fair Work Commission were that the KIS North West Onshore Operations Enterprise Agreement 2017-2021 be approved under section 234 of the Fair Work Act 2009. This approval ensures that the agreement is legally binding and enforceable, providing a framework for the employment relationship between KAEFER Integrated Services Pty Ltd and its employees for the specified period.

Orders