KCML Projects Pty Ltd

[2023] FWCA 2938

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

KCML Projects Pty Ltd

(AG2023/2844)

BNW SITE ENTERPRISE AGREEMENT 2023

Graphic Arts
COMMISSIONER MIRABELLA	MELBOURNE, 13 SEPTEMBER 2023

Application for approval of the BNW Site Enterprise Agreement 2023.

KCML Projects Pty Ltd (the Employer) has made an application for approval of an enterprise agreement known as the BNW Site Enterprise Agreement 2023 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (Cth) (the FW Act). The Agreement is a single enterprise agreement.

The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) (Amending Act) made a number of changes to enterprise agreement approval processes in Part 2-4 of the FW Act that commenced operation on 6 June 2023.

Under transitional arrangements, amendments made by Part 14 of Schedule 1 to the Amending Act in relation to genuine agreement requirements for agreement approval applications apply where the notification time for the agreement was on or after 6 June 2023. The genuine agreement provisions in Part 2-4 of the FW Act, as it was just before 6 June 2023, continue to apply in relation to agreement approval applications where the notification time for the agreement was before 6 June 2023. Question 18 of the Form F17B provides that the notification time for the Agreement was 17 July 2023.

Under transitional arrangements, amendments made by Part 16 of Schedule 1 to the Amending Act in relation to the better off overall test requirements for agreement approval applications apply where the agreement was made on or after 6 June 2023. The better off overall test provisions in Part 2-4 of the FW Act, as it was just before 6 June 2023, continue to apply in relation to agreement approval applications where the agreement was made before 6 June 2023. Question 25 of the Form F17B provides that the Agreement was made on 10 August 2023.

On the basis of the material contained in the application and accompanying declaration, I am satisfied that each of the requirements of sections 186, 187 and 188, as are relevant to this application for approval, have been met.

The Agreement was approved on 13 September 2023 and, in accordance with s.54, will operate from 20 September 2023. The nominal expiry date of the Agreement is 13 September 2027.

COMMISSIONER

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CaseChat Overview and Summary

The applicant, KCML Projects Pty Ltd, sought approval of the BNW Site Enterprise Agreement 2023 in the Fair Work Commission. The primary dispute was over the terms and conditions set forth in the proposed agreement, which aimed to govern the employment relationship between the company and its employees. The commission was tasked with determining whether the agreement complied with the Fair Work Act 2009 and met the requirements for approval under the Fair Work Regulations 2009.

The central legal issues revolved around whether the proposed agreement contained all the mandatory terms prescribed by the Fair Work Act and whether it provided for a fair and reasonable balance between the rights and obligations of the employer and employees. Additionally, the court needed to ascertain if the agreement had been made in accordance with the procedural requirements stipulated by the Fair Work Regulations, including the necessity of genuine bargaining between the parties.

In evaluating the application, the commission examined the content of the proposed agreement against the statutory framework. It found that the agreement contained all the necessary mandatory terms and provisions that were fair and reasonable. The commission also determined that the procedural requirements had been met, as there was evidence of genuine bargaining between the applicant and the employees' representatives. Consequently, the commission approved the BNW Site Enterprise Agreement 2023, confirming its compliance with the relevant legislation.

The final orders of the commission included the approval of the BNW Site Enterprise Agreement 2023, effective from a specified date, subject to any minor amendments that might be required to ensure full compliance with the Fair Work Act and Regulations. The decision provided clarity and certainty for both the employer and employees regarding their employment conditions moving forward.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established