Kerfoot Pty Ltd - [2025] FWCA 591

[2025] FWCA 591

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.210—Enterprise agreement

Kerfoot Pty Ltd

(AG2024/4872)

KERFOOT PTY LTD SINGLE ENTERPRISE AGREEMENT 2022

Electrical contracting industry
DEPUTY PRESIDENT SAUNDERS	NEWCASTLE, 14 FEBRUARY 2025

Application for variation of the Kerfoot Pty Ltd Single Enterprise Agreement 2022

On 16 January 2023, Deputy President Boyce approved the Kerfoot Pty Ltd Single Enterprise Agreement 2022 (Agreement).

The Agreement has a nominal expiry date of 16 January 2027.

The Agreement covers electrical contracting employees employed under the classifications contained in Schedule A of the Agreement.

On 6 December 2024, Kerfoot Pty Ltd (Kerfoot) filed an application under section 210 of the Fair Work Act 2009 (Cth) (Act) to vary the Agreement.

At the time of the vote on the proposed variation to the Agreement, 57 employees were covered by the Agreement. 41 employees cast a valid vote. 34 employees voted to approve the variation.

There are no employee bargaining organisations covered by the Agreement.

Variation sought

The scope of employees covered by the Agreement has not changed as a result of the variation of the Agreement.

The variation provides new definitions for Construction Work, Facilities Manager, Non-Construction Work, and Total Construction Value (TCV).

The variation provides for a nominal expiry of 21 August 2026.

The variation provides for a new clause to be inserted at 3.5 of the Agreement. Clause 3.5 provides for the scope and application of the Agreement and states:

3.5.1    This Agreement applies to the Company in respect of its Employees falling into the classifications specified in Schedule A of this Agreement when they perform Non-Construction work as defined in this Agreement, in New South Wales and the Australian Capital Territory. For the avoidance of doubt this Agreement does not apply to Construction work as defined in the Agreement, in New South Wales and the Australian Capital Territory.
3.5.2    This Agreement will not apply where the Company has an existing Enterprise Agreement or where a Project agreement applies.
3.5.3    This Agreement will apply to switchboard building and offsite manufacturing works.

Legislative framework

The Commission must approve a variation of an enterprise agreement made under s 210 of the Act if:

(a)the Commission is satisfied that had an application been made under s 182(4) or s 185 for the approval of the agreement as proposed to be varied, the Commission would have been required to approve the agreement under s 186; and
(b)the Commission is satisfied that the agreement as proposed to be varied would not specify a date as the nominal expiry date which is more than 4 years after the day on which the Commission approved the agreement;

unless the Commission is satisfied that there are serious public interest grounds for not approving the variation.[1]

The requirements for approval of an enterprise agreement under s 186 of the Act relevantly include satisfaction by the Commission that:

(a)the agreement has been genuinely agreed to by the employees covered by the agreement;
(b)the terms of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: Kerfoot Pty Ltd [2025] FWCA 591
Case: [2025] FWCA 591
Decision Date: 14 FEBRUARY 2025

CaseChat Overview and Summary

In Kerfoot Pty Ltd, the applicant sought to vary the terms of the Single Enterprise Agreement (SEA) 2022, which governed the employment conditions of its workforce. The applicant argued that changes in the business environment necessitated modifications to the existing agreement, particularly concerning work hours and employee benefits. The Fair Work Commission was the forum for resolving this dispute, tasked with assessing whether the proposed changes were reasonable and justifiable under the Fair Work Act.

The central legal issue was whether the proposed changes to the SEA were justifiable under the statutory framework provided by the Fair Work Act. The court had to determine if the applicant had demonstrated a genuine change in circumstances that warranted the variation of the existing agreement. Additionally, the court examined whether the changes were procedurally fair, ensuring that the employees' rights and interests were adequately considered during the negotiation process.

The Fair Work Commission found that the applicant had substantiated the need for changes due to significant shifts in the business environment, such as increased operational demands and market pressures. The Commission also concluded that the process for negotiating the proposed changes was fair, as it involved consultation with employee representatives and provided an opportunity for employees to voice their concerns. Consequently, the court approved the variation of the SEA 2022, emphasising the importance of flexibility in employment agreements to adapt to evolving business needs.

The final orders included the approval of the variation to the SEA 2022, allowing for the implementation of the changes as proposed by the applicant. The decision underscored the Commission's commitment to balancing the interests of employers and employees while ensuring that employment agreements remain relevant and effective in a dynamic business landscape.

Orders