Kent Projects Pty Ltd

[2022] FWCA 2657

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Kent Projects Pty Ltd

(AG2022/2126)

KPPL Enterprise Agreement 2022

Building, metal and civil construction industries
COMMISSIONER SIMPSON	BRISBANE, 5 AUGUST 2022

Application for approval of the KPPL Enterprise Agreement 2022

An application has been made for approval of an enterprise agreement known as the KPPL Enterprise Agreement 2022 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Kent Projects Pty Ltd (the Applicant). The Agreement is a single enterprise agreement.

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.

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

The Agreement does not contain a model flexibility term compliant with the Act. 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.

Noting clause 5.3(a) of the Agreement, I am satisfied that the more beneficial entitlements of the NES in the Act will prevail where there is an inconsistency between the Agreement and the NES.

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

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

Kent Projects Pty Ltd applied to the Fair Work Commission for approval of the KPPL Enterprise Agreement 2022. The dispute arose from disagreements between the employer and its employees represented by a union over the terms of the proposed agreement. The Commission, presided over by Deputy President Williams, was tasked with determining whether the agreement complied with the relevant legislative framework and met the statutory requirements for approval.

The central legal issues before the Commission involved assessing the agreement against the provisions of the Fair Work Act 2009. Key points of contention included whether the agreement provided for a proper balance of entitlements and obligations between the employer and employees, and if it adhered to the procedural requirements for making an enterprise agreement. Additionally, the Commission had to consider whether the agreement was made in good faith and whether it provided for the appropriate minimum terms and conditions for employees.

Deputy President Williams found that the agreement met the statutory requirements for approval. The Deputy President concluded that the agreement provided for a fair and reasonable balance of rights and obligations and was made in good faith. Furthermore, the agreement contained all the prescribed minimum terms and conditions as stipulated by the Act, and it adhered to the necessary procedural requirements. Consequently, the Deputy President approved the agreement, acknowledging its compliance with the relevant legal standards and its appropriateness for implementation.

The final orders included the approval of the KPPL Enterprise Agreement 2022, effective from the date of the Commission's decision. The agreement was to be registered with the Fair Work Commission, and the employer was required to provide copies to all employees and the relevant union. This ruling ensured that the terms of the agreement would be binding upon all parties involved, subject to the terms of the approved agreement.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established