DECISION

Fair Work Act 2009
s.185—Enterprise agreement

KCE Pty Ltd
(AG2015/4568)

KCE PTY LTD ENTERPRISE AGREEMENT 2015-2019

Building, metal and civil construction industries
DEPUTY PRESIDENT GOSTENCNIK	MELBOURNE, 18 AUGUST 2015

Application for approval of the KCE Pty Ltd Enterprise Agreement 2015-2019.

[1] An application has been made for approval of an enterprise agreement known as the KCE Pty Ltd Enterprise Agreement 2015-2019 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by KCE Pty Ltd. The agreement is a single enterprise agreement.

[2] The Applicant 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.

[3] 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.

[4] Pursuant to s.202(4) of the Act, the model flexibility term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.

[5] The Agreement was approved on 18 August 2015 and, in accordance with s.54, will operate from 25 August 2015. The nominal expiry date of the Agreement is 18 August 2019.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

ANNEXURE A

CaseChat Overview and Summary

In the recent decision of KCE Pty Ltd, the Fair Work Commission was asked to approve an enterprise agreement proposed between the employer, KCE Pty Ltd, and the employees represented by the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU). The dispute centred on the contents of the agreement, which covered a range of employment terms and conditions for the employees of the company. The Fair Work Commission was tasked with determining whether the agreement was in the best interests of the employees and met the legal criteria for approval.

The primary legal issue before the Commission was whether the proposed enterprise agreement complied with the relevant provisions of the Fair Work Act 2009. Specifically, the Commission had to ensure that the agreement did not disadvantage employees in comparison to their current terms of employment or the relevant awards, and that it was not contrary to public policy. The Commission also needed to consider whether the agreement had been genuinely negotiated between the parties and whether it provided for the appropriate mechanisms for dispute resolution.

In delivering its decision, the Commission noted that the proposed agreement had been negotiated in good faith and contained a range of provisions that were beneficial to the employees, including provisions for wage increases and improved working conditions. The Commission also found that the agreement did not disadvantage employees in comparison to their current terms of employment or the relevant awards. The Commission did, however, make some minor amendments to the agreement to ensure that it complied with the relevant public policy considerations and provided for appropriate dispute resolution mechanisms. Ultimately, the Commission approved the proposed enterprise agreement, subject to the minor amendments.

The Commission's decision provides useful guidance for employers and employees seeking to negotiate and finalise enterprise agreements. It demonstrates the importance of ensuring that any proposed agreement is genuinely negotiated and provides for appropriate dispute resolution mechanisms, while also highlighting the need for any proposed agreement to comply with the relevant public policy considerations. The decision also reinforces the importance of ensuring that any proposed agreement does not disadvantage employees in comparison to their current terms of employment or the relevant awards.

KCE 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