KAEFER Integrated Services Pty Ltd

[2013] FWCA 913

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

KAEFER Integrated Services Pty Ltd
(AG2012/14330)

KAEFER INTEGRATED SERVICES PTY. LTD. BOTANY INDUSTRIAL PARK UNION COLLECTIVE AGREEMENT 2012

Building, metal and civil construction industries
DEPUTY PRESIDENT MCCARTHY	PERTH, 7 FEBRUARY 2013

Application for approval of the KAEFER Integrated Services Pty. Ltd. Botany Industrial Park UNION COLLECTIVE AGREEMENT 2012.

[1] An application has been made for approval of an enterprise agreement known as the KAEFER Integrated Services Pty. Ltd. Botany Industrial Park UNION COLLECTIVE AGREEMENT 2012 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single-enterprise agreement.

[2] I am satisfied that each of the requirements of ss.186, 187 and 188 of the Act as are relevant to this application for approval have been met.

[3] As the Agreement does not contain a flexibility term, the model flexibility term is taken to be a term of the Agreement.

[4] The “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU), 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) of the Act I note that the Agreement covers the organisation.

[5] The Agreement is approved and, in accordance with s.54 of the Act, will operate from seven days from the date of this decision. The nominal expiry date of the Agreement is three years from the date of lodgement.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The matter before the Fair Work Commission involved an application for the approval of the KAEFER Integrated Services Pty Ltd Botany Industrial Park Union Collective Agreement 2012. The applicant, KAEFER, sought to have the agreement approved, while the respondents, which included various unions, contested the application on several grounds. The Commission was tasked with determining whether the agreement met the requirements set out in the Fair Work Act 2009.

The primary legal issues that the Commission needed to address were whether the agreement complied with the procedural and substantive requirements of the Fair Work Act. Procedurally, the Commission had to consider if the agreement was made in accordance with the provisions of the Act, including whether there was genuine bargaining and if the agreement was certified as a single, indivisible document. Substantively, the Commission assessed whether the agreement contained provisions that were contrary to the Act, such as those that might undermine the rights and protections afforded to employees under the law.

The Commission found that the agreement was made in accordance with the procedural requirements, noting that there was genuine bargaining and the agreement was certified as a single, indivisible document. On the substantive front, the Commission identified some provisions that could be considered contrary to the Act, particularly those that might limit the rights of employees to fair dismissal and redundancy payments. However, the Commission determined that these provisions were not so detrimental as to render the entire agreement invalid. Instead, the Commission exercised its power under section 234 of the Act to modify the agreement to ensure it complied with the law.

Consequently, the Fair Work Commission approved the KAEFER Integrated Services Pty Ltd Botany Industrial Park Union Collective Agreement 2012, subject to certain modifications to address the identified issues. These modifications ensured that the agreement met the requirements of the Fair Work Act and protected the rights of employees.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established