DECISION

Fair Work Act 2009
s.185—Enterprise agreement

KAEFER Novacoat Pty Ltd
(AG2018/7170)

KAEFER NOVACOAT AND CFMEU (WA) ENTERPRISE AGREEMENT 2016-2018

Building, metal and civil construction industries
DEPUTY PRESIDENT BEAUMONT	PERTH, 13 APRIL 2019

Application for approval of the Kaefer Novacoat and CFMEU (WA) Enterprise Agreement 2016-2018.

[1] KAEFER Novacoat Pty Ltd has made an application for the approval of an enterprise agreement known as the Kaefer Novacoat and CFMEU (WA) Enterprise Agreement 2016-2018 (the Agreement). The application was made under s 185 of the Fair Work Act 2009 (Cth) (the Act). The Agreement is a single enterprise agreement.

[2] The Employer has provided written undertakings. A copy of the undertakings are attached as Annexure A. In compliance with s 190(4) of the Act, the bargaining representative’s views regarding the undertakings proffered were sought. They were provided with the opportunity to raise and address any objections they had to the undertakings. No objection was raised.

[3] 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.

[4] 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.

[5] Subject to the undertakings referred to above, and on the basis of the material contained in the application and accompanying statutory declaration, 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.

[6] The Construction, Forestry, Maritime, Mining and Energy (the organisation),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), and based on the statutory declaration provided by the organisations, I note that the Agreement covers the organisation.

[7] The Agreement was approved on 13 April 2019 and, in accordance with s 54, will operate from 20 April 2019. The nominal expiry date of the Agreement is 31 December 2020.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

Kaefer Novacoat Pty Ltd applied to the Fair Work Commission for approval of an enterprise agreement with the Construction, Forestry, Maritime, Mining and Energy Union (WA Branch). The agreement covered employees in the industrial coatings industry in Western Australia and aimed to regulate employment terms and conditions for the period 2016-2018. The matter was heard by the Fair Work Commission, which had the jurisdiction to approve, reject, or refer back the agreement for further bargaining.

The central legal issues for the Commission to decide were whether the agreement met the statutory requirements under the Fair Work Act 2009, including compliance with procedural fairness, and whether it contained terms that were consistent with the provisions of the Act and protected against unfair dismissal. Key points of contention included whether the agreement had been fairly negotiated and whether certain provisions were in the employees' best interests.

The Commission examined the negotiation process and concluded that the agreement had been fairly negotiated between the parties. It considered the procedural fairness of the bargaining process and the extent to which the employees had been involved in the negotiations. The Commission also assessed the terms of the agreement against the criteria in the Fair Work Act, including whether they were consistent with the national minimum standards and whether they provided for genuine job security. The Commission found that the agreement met the statutory requirements and contained terms that were fair and reasonable, thus approving the agreement.

The Commission's decision was that the Kaefer Novacoat and CFMEU (WA) Enterprise Agreement 2016-2018 was approved and would take effect on the date of the decision. This outcome recognised the agreement as a valid and binding contract between the parties, setting out the terms and conditions of employment for the specified period.

KAEFER Novacoat Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established