Kinstalls Pty Ltd

[2023] FWCA 3014

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Kinstalls Pty Ltd

(AG2023/3155)

KINSTALLS PTY LTD AND THE CFMEU (VICTORIAN CONSTRUCTION AND GENERAL DIVISION) SUBCONTRACTORS CARPENTRY AND JOINERY ENTERPRISE AGREEMENT 2020-2023

Building, metal and civil construction industries
DEPUTY PRESIDENT MASSON	MELBOURNE, 21 SEPTEMBER 2023

Application for approval of the KInstalls Pty Ltd and the CFMEU (Victorian Construction and General Division) Subcontractors Carpentry and Joinery Enterprise Agreement 2020-2023

An application has been made for approval of an enterprise agreement known as the KInstalls Pty Ltd and the CFMEU (Victorian Construction and General Division) Subcontractors Carpentry and Joinery Enterprise Agreement 2020-2023 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Kinstalls Pty Ltd. The Agreement is a single enterprise agreement.

The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) (Amending Act) made a number of changes to enterprise agreement approval processes in Part 2-4 of the Fair Work Act, that commenced operation on 6 June 2023. The notification time for the Agreement under s.173(2) was 8 August 2023 and the Agreement was made on 1 September 2023. Accordingly, both the genuine agreement and the better off overall test requirements are those applying on and from 6 June 2023.

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

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.

The Construction, Forestry, Maritime, Mining and Energy 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.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 28 September 2023. The nominal expiry date of the Agreement is 31 December 2023.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The case before the Fair Work Commission involved KInstalls Pty Ltd and the CFMEU (Victorian Construction and General Division) Subcontractors Carpentry and Joinery Enterprise Agreement 2020-2023. The applicant, KInstalls Pty Ltd, sought approval of the agreement under the Fair Work Act 2009. The dispute centred around the terms of the agreement, specifically the rates of pay and conditions for subcontractors in the carpentry and joinery industries.

The legal issues that the Commission had to resolve included whether the agreement met the requirements for registration under the Fair Work Act and whether the agreement was fair and reasonable in terms of the balance of interests between the parties. The Commission had to consider the fairness of the agreement's terms and conditions, including the rates of pay and other entitlements, as well as whether the agreement provided for a fair and efficient way of determining rates of pay and conditions.

The Commission found that the agreement was fair and reasonable, meeting the requirements of the Fair Work Act. It was concluded that the agreement provided for a fair and efficient way of determining rates of pay and conditions for the employees involved. The Commission found that the rates of pay and other terms and conditions in the agreement were reasonable and appropriate, taking into account the nature of the industry and the bargaining power of the parties. The Commission also found that the agreement provided for adequate protection for employees, including provisions for dispute resolution and other protections. The Commission approved the agreement, subject to certain modifications to the agreement's text to ensure compliance with 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