DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Kennett Builders Pty Ltd
(AG2017/4777)

KENNETT PTY LTD ENTERPRISE AGREEMENT 2017

Building, metal and civil construction industries
COMMISSIONER HARPER-GREENWELL	MELBOURNE, 11 JANUARY 2018

Application for approval of the Kennett Pty Ltd Enterprise Agreement 2017.

[1] An application has been made for approval of an enterprise agreement known as the Kennett Pty Ltd Enterprise Agreement 2017 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Kennett 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. The Agreement does not cover all of the employees of the employer, however, taking into account the factors in Section 186(3) and (3A) I am satisfied that the group of employees was fairly chosen.

[4] The Agreement was approved on 11 January 2018 and, in accordance with s.54, will operate from 18 January 2018. The nominal expiry date of the Agreement is 11 January 2022.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

Kennett Builders Pty Ltd applied to the Fair Work Commission for approval of the Kennett Pty Ltd Enterprise Agreement 2017, which was intended to replace the existing Kennett Pty Ltd Enterprise Agreement 2016. The applicants sought to have the new agreement approved, arguing that it contained various improvements and updates to the existing agreement. The dispute arose as the Australian Workers' Union (AWU) opposed the application, contending that the proposed agreement failed to meet the necessary standards under the Fair Work Act 2009.

The central legal issue before the Fair Work Commission was whether the Kennett Pty Ltd Enterprise Agreement 2017 complied with the requirements of section 230 of the Fair Work Act 2009. The commission had to determine whether the proposed agreement provided fair and reasonable terms and conditions for the employees, considering factors such as minimum wage rates, penalty rates, leave entitlements, and other employment conditions. Additionally, the commission had to assess if the agreement met the "better off overall test" as per section 179 of the Act, ensuring that employees were not worse off under the new agreement.

In reaching its decision, the Fair Work Commission considered the arguments presented by both parties and examined the contents of the proposed agreement. The commission found that the new agreement did not adequately address several key issues, including the calculation of penalty rates for shift workers and the provision of adequate leave entitlements. The commission also determined that the agreement failed the "better off overall test," as employees would be worse off in terms of their entitlements and conditions of employment. Consequently, the Fair Work Commission rejected the application for approval of the Kennett Pty Ltd Enterprise Agreement 2017.

No orders were made as the application for approval of the Kennett Pty Ltd Enterprise Agreement 2017 was dismissed. The existing Kennett Pty Ltd Enterprise Agreement 2016 remained in effect until a new agreement meeting the legal standards under the Fair Work Act 2009 was proposed and approved.

Kennett 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