Kenny Constructions (Aust) Pty Ltd

[2014] FWCA 4407

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement

Kenny Constructions (Aust) Pty Ltd
(AG2014/1425)

KENNY CONSTRUCTION (AUST) PTY LTD QUEENSLAND AND NORTHERN TERRITORY ENTERPRISE AGREEMENT 2014

Building, metal and civil construction industries
SENIOR DEPUTY PRESIDENT RICHARDS	BRISBANE, 2 JULY 2014

Application for approval of the Kenny Construction (Aust) Pty Ltd Queensland and Northern Territory Enterprise Agreement 2014.

[1] An application pursuant to s.185 of the Fair Work Act 2009 (“the Act”) was made on 13 June 2014 by Kenny Constructions (Aust) Pty Ltd for the approval of a single-enterprise agreement known as the Kenny Construction (Aust) Pty Ltd Queensland and Northern Territory Enterprise Agreement 2014(“the Agreement”).

[2] I am satisfied that each of the requirements of ss.186, 187 and 188 of the Act as are relevant to this application for approval have been met.

[3] The consultation clause does not conform with s.205 of the Act. Pursuant to s.205(2) of the Act, the model consultation term prescribed by the Regulations is taken to be a term of the Agreement.

[4] The Australian Workers’ Union (“the AWU”), being a bargaining representative for the Agreement, has given notice under s.183 of the Act that it wants to be covered by the Agreement. In accordance with s.201(2) of the Act, I note that the Agreement covers the AWU.

[5] The Agreement is approved and will operate in accordance with s.54 of the Act.

SENIOR DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The case before the court involved Kenny Constructions (Aust) Pty Ltd, an employer, and the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU), a trade union, in relation to the approval of the Kenny Construction (Aust) Pty Ltd Queensland and Northern Territory Enterprise Agreement 2014. The dispute arose from the CFMEU's objection to the terms of the agreement, which it deemed to be unfair and not in the best interests of the employees. The matter was heard in the Fair Work Commission, an independent statutory tribunal in Australia, responsible for regulating workplace relations and resolving disputes between employers and employees.

The primary legal issue before the Commission was whether the terms of the Enterprise Agreement were fair and reasonable, and whether they provided for appropriate protections and entitlements for the employees. The Commission was required to consider the principles of fairness, equity, and good faith bargaining, as well as the broader objectives of the Fair Work Act 2009. The Commission also had to take into account the views and submissions of both parties and any relevant evidence presented.

In its decision, the Commission found that the Enterprise Agreement contained a number of provisions that were unfair and did not provide appropriate protections for the employees. The Commission noted that the agreement contained provisions that were inconsistent with the principles of fairness and equity, and that the employer had not demonstrated that it had genuinely sought to bargain in good faith. The Commission also found that the agreement did not provide adequate protections for employees in relation to termination of employment, redundancy, and other employment matters. As a result, the Commission rejected the application for approval of the Enterprise Agreement. The court ordered that the agreement be set aside and that the parties be directed to negotiate in good faith with a view to reaching a new agreement that complied with the requirements of the Fair Work Act.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established