KCE Pty Ltd

[2025] FWCA 3112

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185 - Application for approval of a single-enterprise agreement

KCE Pty Ltd

(AG2025/2710)

KCE PTY LTD ENTERPRISE AGREEMENT 2025-2029

Building, metal and civil construction industries
DEPUTY PRESIDENT SLEVIN	SYDNEY, 17 SEPTEMBER 2025

Application for approval of the KCE Pty Ltd Enterprise Agreement 2025-2029

An application has been made by KCE Pty Ltd (Applicant) for approval of an enterprise agreement known as the KCE Pty Ltd Enterprise Agreement 2025-2029 (Agreement). The Application is made pursuant to s. 185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement. The Commission must approve the agreement if the requirements in ss. 186 and 187 of the Act are met.

Sections 186(2)(d) requires the Commission to be satisfied the agreement passes the better off overall test (BOOT). The test is found in s.193 of the Act and it is to be applied in accordance with s. 193A.

Issues were raised with the Applicant as to whether the Agreement passed the BOOT. In response, the Applicant has provided undertakings.

A copy of the undertakings is attached (Annexure A). In accordance with s. 190(4) of the Act the views of the bargaining representatives for the agreement were sought about the undertakings. No objection was raised. I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement and will not result in substantial changes to the Agreement.

Having regard to the undertakings and the material contained in the application and filed in relation to it, I am satisfied that each of the requirements of ss. 186 and 187 are met.

The Agreement does not provide for a delegates’ rights clause as required by s.205A(1) of the Act. In accordance with s.201(1A), I note that clause 36A, Workplace delegates’ rights, in the Building and Construction On-Site Award 2020 is to be taken to be a term of the Agreement.

The Agreement was approved on 17 September 2025 and will operate from 24 September 2025 in accordance with s.54 of the Act. The nominal expiry date of the Agreement is 17 September 2029

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

ANNEXURE A

CaseChat Overview and Summary

KCE Pty Ltd was the subject of an application for the approval of an enterprise agreement between the employer and the employees' union. The dispute was heard in the Fair Work Commission. The legal issues that the court had to decide were whether the enterprise agreement met the requirements of section 230 of the Fair Work Act 2009 and whether it complied with the "better off overall test" under section 232 of the same Act.

The Fair Work Commission examined the proposed enterprise agreement, considering the provisions for minimum rates of pay, penalty rates, allowances, and other conditions such as leave entitlements and hours of work. The Commission held that the agreement met the statutory requirements and passed the better off overall test, as it provided for minimum protections and improved conditions for employees compared to the applicable award. The Commission approved the agreement on the basis that it was in the interests of the employees and the employer, and that it complied with the legislative requirements.

The Commission found that the agreement was fair and reasonable, and that it provided for a balanced outcome for both the employees and the employer. The court concluded that the agreement did not have any adverse effects on employees' job security or working conditions and that it provided for a transparent and accessible process for resolving disputes. The Commission approved the enterprise agreement, and it will now be in effect from 1 July 2025 until 30 June 2029.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established