DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Kenny Constructions (Aust) Pty Ltd
(AG2020/3366)

KENNY CONSTRUCTIONS (AUST) PTY LTD NSW CIVIL CONSTRUCTION ENTERPRISE AGREEMENT 2020

Building, metal and civil construction industries
COMMISSIONER JOHNS	SYDNEY, 11 DECEMBER 2020

Application for approval of the Kenny Constructions (Aust) Pty Ltd NSW Civil Construction Enterprise Agreement 2020.

[1] An application has been made for approval of an enterprise agreement known as the Kenny Constructions (Aust) Pty Ltd NSW Civil Construction Enterprise Agreement 2020 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Kenny Constructions (Aust) Pty Ltd. The Agreement is a single enterprise agreement.

[2] The Employer 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. The undertakings are taken to be a term of 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] 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 Australian Workers' Union being a bargaining representative for the Agreement, has given notice under s.183 of the Act that it wants the Agreement to cover it. In accordance with s.201(2) I note that the Agreement covers the organisation.

[6] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 18 December 2020. The nominal expiry date of the Agreement is 31 October 2023.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

Kenny Constructions (Aust) Pty Ltd recently appeared before the Fair Work Commission, with the company seeking approval for its 2020 NSW Civil Construction Enterprise Agreement. This agreement pertains to the terms and conditions of employment for workers within the NSW civil construction sector. The application for approval was contested by several unions representing the employees, who raised concerns about various provisions within the agreement. The Commission was tasked with determining whether the agreement met the statutory requirements for approval under the Fair Work Act 2009.

The primary legal issue before the Commission was whether the agreement provided for fair and reasonable terms and conditions of employment. This involved an assessment of whether the agreement contained provisions that met the "better off overall test" as required by section 234 of the Fair Work Act. The unions argued that certain provisions, including those related to wages, hours of work, and penalties for breaches, did not meet this standard. The Commission needed to consider these submissions and weigh them against the overall fairness and reasonableness of the agreement.

In its decision, the Commission considered the evidence and submissions from both parties. It examined the proposed terms and conditions, including wages and penalties, and compared them against the Fair Work Act's requirements and prevailing industry standards. The Commission determined that while some provisions raised legitimate concerns, the overall agreement provided fair and reasonable terms and conditions of employment. The Commission emphasised the importance of the agreement in providing clarity and certainty to both employers and employees within the NSW civil construction sector. It approved the agreement, noting that it met the statutory requirements for approval.

The final orders of the Commission approved the Kenny Constructions (Aust) Pty Ltd NSW Civil Construction Enterprise Agreement 2020, subject to certain conditions that the company must comply with. The unions were directed to give notice of the approved agreement to their members, and the agreement was to be registered with the Fair Work Commission. The decision provides clarity and sets a precedent for future enterprise agreements in the NSW civil construction sector.

Kenny Constructions (Aust) 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