Kane Constructions Pty Ltd

[2024] FWCA 4334

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Kane Constructions Pty Ltd

(AG2024/4170)

KANE CONSTRUCTIONS PTY LTD AND THE CFMEU (VICTORIAN CONSTRUCTION AND GENERAL DIVISION) ENTERPRISE AGREEMENT 2024 - 2027

Building, metal and civil construction industries
DEPUTY PRESIDENT BELL	MELBOURNE, 6 DECEMBER 2024

Application for approval of the Kane Constructions Pty Ltd and the CFMEU (Victorian Construction and General Division) Enterprise Agreement 2024 – 2027.

An application has been made for approval of an enterprise agreement known as the Kane Constructions Pty Ltd and the CFMEU (Victorian Construction and General Division) Enterprise Agreement 2024 - 2027 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act) by Kane Constructions Pty Ltd. The Agreement is a single enterprise agreement.

Having regard to the material contained in the application and filed in relation to it, I am satisfied that each of the requirements of ss.186, 187, 188, 193 and 193A as are relevant to this application for approval have been met. The Agreement does not cover all of the employees of the employer, however, taking into account the factors in sections 186(3) and (3A) I am satisfied that the group of employees was fairly chosen.

The Notice of Employee Representational Rights (NOERR) was not in the prescribed form, as the pre-reform version has been used. In addition, the last date the NOERR was provided to employees was more than 14 days after the notification time as required by s.173(3). Nevertheless, in the circumstances, I am satisfied that these constitute minor procedural or technical errors for the purposes of s.188(5) of the Act. Further, I am satisfied that the employees covered by the agreement were not likely to have been disadvantaged by these errors. As a result, I am satisfied that the Agreement has been genuinely agreed within the meaning of s.188 of the Act.

The Construction, Forestry and Maritime Employees Union (CFMEU), 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) I note that the Agreement covers the organisation.

The Agreement was approved on 6 December 2024 and, in accordance with s.54 of the Act, will operate from 13 December 2024. The nominal expiry date of the Agreement is 2 July 2027.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Kane Constructions Pty Ltd sought approval for an enterprise agreement with the CFMEU (Victorian Construction and General Division). The dispute was heard in the Fair Work Commission, the tribunal responsible for approving such agreements. The legal issues before the tribunal included whether the agreement met the statutory requirements for approval, such as being free from prohibited content, meeting procedural requirements, and being in the best interests of the employees. The tribunal also needed to determine if the agreement contained adequate provisions for employees' rights and obligations, including terms and conditions of employment, dispute resolution mechanisms, and any other relevant matters.

The tribunal carefully examined the provisions of the agreement, assessing its compliance with the Fair Work Act 2009. It considered whether the agreement contained any terms that would be considered contrary to public policy or unfair to employees. The tribunal also evaluated whether the agreement provided for a fair and reasonable outcome for employees and if the bargaining process was conducted in good faith. Furthermore, the tribunal assessed the procedural fairness of the agreement, including whether proper consultation occurred and if the agreement was appropriately documented and communicated to the employees.

After a thorough examination, the tribunal determined that the agreement was free from prohibited content and complied with all procedural requirements. The tribunal found that the agreement was in the best interests of the employees, providing adequate terms and conditions of employment and fair dispute resolution mechanisms. The tribunal also noted that the agreement was the result of genuine and good-faith bargaining between the parties. Based on these findings, the tribunal approved the enterprise agreement.

The tribunal issued an order approving the enterprise agreement, which will now govern the employment terms and conditions of the employees covered by the agreement. The order will come into effect on the date specified in the agreement, and the tribunal's decision is final and binding on all parties involved.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

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Legal Principle Established