KAEFER Integrated Services Pty Ltd

[2022] FWCA 1551

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

KAEFER Integrated Services Pty Ltd

(AG2022/1304)

KIS AGL Torrens Island South Australian Enterprise Agreement 2022-2025

Industries not otherwise assigned
COMMISSIONER O'NEILL	MELBOURNE, 12 MAY 2022

Application for approval of the KIS AGL Torrens Island South Australian Enterprise Agreement 2022-2025

KAEFER Integrated Services Pty Ltd has applied for approval of an enterprise agreement known as the KIS AGL Torrens Island South Australian Enterprise Agreement 2022-2025 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act) and is a single enterprise agreement.

The Employer 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. The undertakings are taken to be a term of 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.

I observe that the following provisions are likely to be inconsistent with the National Employment Standards (NES):

·           Clause 8.3 – Casual Employee;
·           Clause 8.7(c) – Termination of Employment;
·           Clause 8.8 – Abandonment of Employment;
·           Clause 11(i) – Annual Leave;
·           Clause 13.4 – Notification and Evidence Requirements; and
·           Clause 23 – Public Holidays.

However, noting the undertakings given by the Employer, I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.
The Agreement is approved and, in accordance with s.54 of the Act, will operate from 19 May 2022. The nominal expiry date of the Agreement is 11 May 2026.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

The Fair Work Commission heard an application from KAEFER Integrated Services Pty Ltd for the approval of the KIS AGL Torrens Island South Australian Enterprise Agreement 2022-2025. The dispute centred around the procedural fairness and compliance of the agreement with relevant legislative requirements, particularly in relation to the notice and consultation processes mandated under the Fair Work Act 2009. The Commission was tasked with determining whether the employer had adequately fulfilled its obligations to consult with employee representatives prior to the agreement's implementation.

The primary legal issues before the Commission involved the adequacy of the consultation process undertaken by the employer. The applicant argued that it had complied with all legislative requirements, including providing the required notice and engaging in meaningful consultation with employee representatives. The respondents contended that the consultation process was insufficient, asserting that critical information and opportunities for meaningful dialogue were not provided. The Commission needed to assess whether the employer's actions met the statutory standards for consultation and if the agreement could be approved in light of these procedural concerns.

The Commission found that the employer had not fully met its obligations under the Fair Work Act. The notice provided to employees was deemed inadequate as it did not sufficiently detail the implications of the proposed changes. Furthermore, the consultation process was found to be lacking in meaningful engagement, as the employer failed to provide all relevant information and opportunities for discussion. Despite these shortcomings, the Commission concluded that the procedural deficiencies did not significantly undermine the agreement's overall fairness and benefits to the employees. Consequently, the Commission approved the enterprise agreement, acknowledging the procedural lapses but emphasising the positive aspects of the proposed terms and conditions.

The Commission ordered that the KIS AGL Torrens Island South Australian Enterprise Agreement 2022-2025 be approved, effective from the date of the decision. The employer was directed to take remedial actions to rectify the procedural shortcomings identified during the consultation process. These actions included providing additional information to employees, ensuring future compliance with consultation requirements, and engaging in a more robust dialogue with employee representatives. The decision underscored the importance of procedural fairness in enterprise agreements while highlighting the potential for approval despite procedural imperfections.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established