Kolen Carpentry Pty Ltd

[2022] FWCA 2453

[2022] FWCA 2453

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

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

Kolen Carpentry Pty Ltd

(AG2022/2410)

Kolen Carpentry Pty Ltd Enterprise Agreement 2022

Building, metal and civil construction industries
COMMISSIONER PLATT	ADELAIDE, 22 JULY 2022

Application for approval of the Kolen Carpentry Pty Ltd Enterprise Agreement 2022

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

1. The matter was allocated to my Chambers on 19 July 2022.

1. On 21 July 2022, I conducted a telephone conference with the Applicant to seek clarification about aspects of the Agreement and invited the Applicant to address these matters including through the provision of an undertaking.

1. The Applicant has submitted an undertaking in the required form dated 21 July 2022. The undertaking deals with the following topics:

·   Clause 4.1.1(b) of the Agreement will be amended such that ordinary hours on any day will be eight hours.

·   Overtime worked by a shiftworker will be paid at 200% of the ordinary rate of pay, except on public holidays, when it will be paid at 250% of the ordinary rate of pay.

·   Ordinary hours worked on a public holiday will be paid at 250% of the ordinary rate of pay.

·   Casual employees will receive the casual loading in addition to any penalties or loadings under the Agreement.

1. No bargaining representatives were appointed.

1. The undertaking appears to meet the requirements of s.190(3) of the Act and I have accepted it. As a result, the undertakings are taken to be a term of the Agreement.

1. Whilst acknowledging that the Agreement is generally a rollover, it is noted that the explanatory document provided to the employees did not identify that a number of provisions in the Agreement are less beneficial when compared to the equivalent provisions in the Building and Construction General On-site Award 2020 (the Award). As a result of the undertakings provided by the Applicant as outlined above, I am satisfied (taking into consideration s.188(2) of the Act and the decision in Huntsman Chemical Company Australia Pty Limited T/A RMAX Rigid Cellular Plastics & Others) that the procedural or technical error is minor and that the employees were not likely to have been disadvantaged, and accordingly, that there has been a genuine agreement.

1. It is also noted that the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU), who are not a bargaining representative for the Agreement, filed submissions in respect of the approval of the Agreement. I have considered these objections as per the powers conferred on me by s.590 of the Act. I am satisfied that the issues raised by the CFMMEU in their submissions have been adequately resolved by the undertakings provided by the Applicant.

1. I am satisfied that each of the requirements of ss.186, 187, 188 and 190 of the Act as are relevant to this application for approval have been met.

1. The Agreement is approved and, in accordance with s.54 of the Act, will operate from 7 days after the date of approval of the Agreement. The nominal expiry date is 30 June 2026.

COMMISSIONER

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