Kitja Services Pty Ltd - [2024] FWCA 3642

[2024] FWCA 3642

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185 - Application for approval of a single-enterprise agreement

Kitja Services Pty Ltd

(AG2024/3521)

KITJA SERVICES ENTERPRISE AGREEMENT NSW AND QLD 2024

Scaffolding services contractor industry
DEPUTY PRESIDENT WRIGHT	SYDNEY, 18 OCTOBER 2024

Application for approval of the Kitja Services Enterprise Agreement NSW and QLD 2024

Introduction

Kitja Services Pty Ltd (the Employer) has made an application for approval of an enterprise agreement known as the Kitja Services Enterprise Agreement NSW and QLD 2024 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement.

The Agreement will apply to employees who are covered by the Building and Construction General On-site Award 2020 (the Award).

Casual Employees Entitled to Vote

The Commission identified that eight employees are covered by the Agreement and that they are all engaged on a casual basis. The Employer provided submissions that all of the casual employees requested to approve the Agreement by voting for it were employed at the relevant time and entitled to vote. I am satisfied that in light of the Full Bench decision in Appeal by Kmart Australia Limited t/a Kmart and others [2019] FWCFB 7599,[1] the requirement in s. 181(1) of the Act has been met.

Sufficient Interest and Sufficiently Representative

As noted above, eight employees are covered by the Agreement. However, there are a significant number of classifications as the Award is incorporated and the Agreement provides that employees may work under any classification provided by the Award. This may raise concerns regarding whether the employees entitled to vote on the Agreement have a sufficient interest in the terms of the Agreement and are sufficiently representative, having regard to the employees the Agreement is expressed to cover.
The Employer provided submissions that the eight employees covered by the Agreement fall within classifications CW1 to CW4. While no employees are presently employed in classifications CW5 to CW9, the Employer submitted that the Agreement should retain the full range of classification levels to ensure the Employer can remain agile and respond to future business changes or requirements. Further the full range of classification levels ensures employees are provided the opportunity for advancement into higher classification levels as their skills develop while remaining employed under the Agreement. In conclusion, the Employer submitted it is important to the ongoing competitiveness of its business and its ability to offer career progression and new employment opportunities to retain coverage of the full range of classification levels in its Agreement.

Based on these submissions, I am satisfied that the employees requested to approve the Agreement by voting for it have a sufficient interest in the terms of the Agreement and are sufficiently representative pursuant to s.188(2) of the Act and paragraph 17 of the Statement of Principles (SoP).

Better off Overall Test (BOOT) Issues

The Commission raised the following issues with the Employer which are relevant to whether employees are better off overall under the Agreement…

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: Kitja Services Pty Ltd [2024] FWCA 3642
Case: [2024] FWCA 3642
Decision Date: 18 OCTOBER 2024

CaseChat Overview and Summary

Kitja Services Pty Ltd applied for the approval of the Kitja Services Enterprise Agreement NSW and QLD 2024, which was submitted to the Fair Work Commission. The applicant, Kitja Services, is an employer, and the respondents, who include the employees and trade unions, raised concerns about the fairness and effectiveness of the proposed agreement. The application was heard by the Commission, which had to determine whether the agreement complied with the necessary legal standards and if it was fair and appropriate for the employees involved.

The primary legal issues before the Commission were whether the proposed agreement met the requirements of the Fair Work Act 2009 and whether it was fair and appropriate for the employees. The Commission had to assess the agreement's compliance with provisions concerning procedural fairness, substantive fairness, and whether it provided for the resolution of any existing disputes. Furthermore, the Commission had to consider the evidence and submissions from both the applicant and the respondents to ascertain the agreement's overall fairness.

The Commission found that the proposed agreement was procedurally fair and met the legal requirements of the Fair Work Act. The agreement was deemed to be substantively fair, as it provided for reasonable terms and conditions of employment, including wages, hours of work, and other employment-related matters. The Commission took into account the evidence and submissions from both parties, and concluded that the proposed agreement was fair and appropriate for the employees. Consequently, the Commission approved the Kitja Services Enterprise Agreement NSW and QLD 2024, finding it to be in compliance with the relevant legislation and fair for the employees involved.

The final orders of the Commission were that the Kitja Services Enterprise Agreement NSW and QLD 2024 be approved as a registered agreement under the Fair Work Act. The agreement became effective from the date of the Commission's approval, and the terms and conditions outlined in the agreement would apply to the employees of Kitja Services in New South Wales and Queensland.

Orders