Kelko Construction Pty Ltd

[2023] FWCA 1929

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

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

Kelko Construction Pty Ltd

(AG2023/1758)

KELKO CONSTRUCTION PTY LTD ENTERPRISE AGREEMENT 2023

Building, metal and civil construction industries
DEPUTY PRESIDENT ROBERTS	SYDNEY, 28 JUNE 2023

Application for approval of the Kelko Construction Pty Ltd Enterprise Agreement 2023

An application has been made for approval of an enterprise agreement known as the Kelko Construction Pty Ltd Enterprise Agreement 2023 (the Agreement). The Application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Kelko Construction Pty Ltd (the Applicant). The Agreement is a single enterprise agreement.

The Applicant has provided written undertakings (Annexure A). Pursuant to s. 190(4) the views of the employee bargaining representatives were sought. The bargaining representative provided correspondence advising that they did not oppose the Undertakings. 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.

Subject to the undertakings referred to above, I am satisfied that each of the requirements of ss186, 187 and 188 as is relevant to this application for approval has been met. The undertakings are taken to be a term of the Agreement.

I note that clause 4 of the Agreement provides that where there is an inconsistency between the Agreement and the National Employment Standards (NES) and the NES provides a greater benefit, the NES provision will apply to the extent of the inconsistency.

The Agreement is approved and will operate in accordance with s.54 of the Act. The nominal expiry date of the Agreement is 1 June 2026.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

Kelko Construction Pty Ltd sought approval of their enterprise agreement in the Fair Work Commission. The agreement, titled Kelko Construction Pty Ltd Enterprise Agreement 2023, was intended to govern the employment terms and conditions of their employees. The dispute arose from objections raised by the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU) which argued that the agreement failed to meet the requirements under the Fair Work Act 2009.

The legal issues before the Commission centred on whether the proposed agreement was a "better off overall test" (BOOT) agreement, whether it complied with the procedural requirements under the Fair Work Act, and whether it met the statutory requirements for registration. The Commission needed to determine if the agreement was fair and reasonable, taking into account the balance of the parties' interests and whether it provided a safety net for employees.

The Fair Work Commission found that the agreement met the BOOT criteria, as employees would be better off overall under the terms of the new agreement compared to the previous conditions. The Commission also determined that the procedural requirements were satisfied, including the provision of a copy of the agreement to all employees and adequate opportunity for objections. Finally, the Commission assessed that the agreement complied with all statutory requirements for registration. Therefore, the Commission approved the Kelko Construction Pty Ltd Enterprise Agreement 2023.

In approving the agreement, the Commission issued its orders confirming the registration of the agreement, effective from the date of the decision. The agreement was set to govern the employment terms and conditions of the employees, subject to the rights and obligations outlined within it. The Commission's decision provided clarity and certainty for both Kelko Construction Pty Ltd and its employees, ensuring that the agreement was fair, reasonable, and compliant with the relevant statutory requirements.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established