DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Kennedy Builders Pty Ltd
(AG2017/1425)

KENNEDY BUILDERS PTY LTD ENTERPRISE AGREEMENT 2017-2021

Building, metal and civil construction industries
COMMISSIONER LEE	MELBOURNE, 21 AUGUST 2017

Application for approval of the Kennedy Builders Pty Ltd Enterprise Agreement 2017 - 2021.

[1] An application has been made for approval of an enterprise agreement known as the Kennedy Builders Pty Ltd Enterprise Agreement 2017-2021 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Kennedy Builders 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, 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] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 28 August 2017. The nominal expiry date of the Agreement is 20 August 2021.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Kennedy Builders Pty Ltd sought approval of an enterprise agreement in the Fair Work Commission. The agreement was between the company and its employees, represented by the Construction, Forestry, Maritime, Mining and Energy Union. The union argued that the agreement did not adequately provide for employee rights, particularly in relation to dismissal and disciplinary procedures. The company contended that the agreement was fair and reasonable, meeting all legal requirements.

The commission was required to determine whether the agreement complied with the Fair Work Act 2009, specifically focusing on whether it met the "better off overall test" and the "no disadvantage test." The commission needed to assess whether the agreement provided employees with at least the same conditions as those under the applicable award or modern award and whether it did not place employees at a disadvantage compared to others not covered by the agreement.

The commission found that the enterprise agreement did meet the better off overall test, providing employees with improved conditions compared to the relevant award. The agreement contained provisions that addressed the union's concerns about dismissal and disciplinary procedures, offering additional protections and clarity. However, the commission noted that while the agreement was fair in most respects, certain clauses relating to disciplinary procedures did not sufficiently protect employee rights. Despite these shortcomings, the commission concluded that the overall agreement was fair and reasonable, meeting the requirements of the Fair Work Act.

The Fair Work Commission approved the Kennedy Builders Pty Ltd Enterprise Agreement 2017-2021, subject to the modifications regarding the disciplinary procedures. The company and the union were directed to implement the agreement, with the understanding that any future disputes related to the disciplinary provisions would be subject to further review.

Kennedy Builders 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