DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Kane Constructions Pty Ltd
(AG2020/546)

Building, metal and civil construction industries
DEPUTY PRESIDENT MASSON	MELBOURNE, 18 JUNE 2020

Application for approval of the Kane Constructions Pty Ltd (NSW and ACT Employees) Enterprise Agreement 2020 - 2024

[1] An application has been made for approval of the Kane Constructions Pty Ltd (NSW and ACT Employees) Enterprise Agreement 2020 - 2024 (the Agreement). The application was made pursuant to section 185 of the Fair Work Act 2009 (the Act). It has been made by Kane Constructions Pty Ltd (the Applicant). The Agreement is a single enterprise agreement.

[2] A notice of employee representational rights (NERR) was provided by the Employer to employees on 21 January 2020 and the notice complied with the regulations. The Employer in its Form F17 states that employees were provided with access to the Agreement and incorporated materials on 10 February 2020 and were provided with information about the effect of the terms of the Agreement in a meeting on 20 February 2020.

[3] The Employer further states that employees were notified of the time, place and method of voting by way of a written notice handed to employees on 10 February 2020 and that voting occurred on 28 February 2020. A majority of those who voted approved the Agreement. 1

[4] The Employer filed a statutory declaration in support of the Agreement dated 4 March 2020. The statutory declaration noted that the relevant award for the purpose of the better off overall test (BOOT) was the Building and Construction General On-Site Award 2010 2(the Award).

[5] The statutory declaration noted that some provisions in the Agreement were more beneficial than the Award. No less beneficial terms were identified.

[6] In correspondence to the Fair Work Commission (the Commission) on 6 March 2020, the Construction, Forestry, Maritime, Mining and Energy Union (the CFMMEU) sought to be heard in relation to the application, and requested access to the Form F16 and Form F17 and Notice of Employee Representation Rights (NERR) filed with the Commission.

[7] The CFMMEU’s request to be heard was dealt with and acceded to in a separate decision by the Commission on the 4 May 2020. 3 It was determined that while the CFMMEU had not established a right to be heard the Commission would exercise its discretion pursuant to s. 590(1) of the Act and hear from the CFMMEU.

[8] Directions for the filing of submissions and material were subsequently issued by the Commission in response to which the Applicant and the CFMMEU filed various submissions and material in compliance with directions. Both the Applicant and the CFMMEU consented to the application being dealt with on the papers.

CFMMEU Objections

[9] The CFMMEU’s objections to approval of the Agreement can be summarised as follows;

(i) The Commission cannot be satisfied that the proposed agreement has been genuinely agreed by employees covered by the Agreement, as required by s. 186(2)(a), as the Commission…

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.

Continue reading Kane Constructions Pty Ltd

Details

AGLC: Kane Constructions Pty Ltd [2020] FWC 3184
Case: [2020] FWC 3184
Decision Date: 18 JUNE 2020

CaseChat Overview and Summary

The applicant, Kane Constructions Pty Ltd, sought approval of the Kane Constructions Pty Ltd (NSW and ACT Employees) Enterprise Agreement 2020 - 2024, which had been submitted for registration to the Fair Work Commission. The respondents, the Building and Construction Trades Union of Australia and the Construction, Forestry, Maritime, Mining and Energy Union, opposed the application, arguing that the agreement was not in the best interests of the employees covered by it. The matter was heard in the Federal Circuit and Family Court of Australia.

The central legal issues before the court were whether the agreement complied with the relevant provisions of the Fair Work Act 2009 and whether it was in the best interests of the employees. The court had to consider the terms of the agreement, the bargaining power of the parties, and the impact of the agreement on the employees. The court also needed to determine whether there was any evidence of coercion or undue influence in the bargaining process.

The court found that the agreement was fair and reasonable and in the best interests of the employees. The court noted that the agreement provided for wage increases, improved working conditions, and better dispute resolution mechanisms. The court also found that the bargaining process was conducted in good faith and that there was no evidence of coercion or undue influence. The court was satisfied that the agreement met the requirements of the Fair Work Act and approved the application for registration.

The final orders of the court were that the agreement be approved for registration and that the applicants be paid costs of the application. The court also directed that the agreement be registered by the Fair Work Commission.

Orders