DECISION

Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement

Kwiklok Australia Pty Ltd
(AG2020/132)

KWIKLOK AUSTRALIA PTY LTD AND UNITED WORKERS UNION ENTERPRISE AGREEMENT 2019

Manufacturing and associated industries
DEPUTY PRESIDENT MILLHOUSE	MELBOURNE, 31 MARCH 2020

Application for approval of the Kwiklok Australia Pty Ltd and United Workers Union Enterprise Agreement 2019.

[1] An application has been made for approval of an enterprise agreement known as the Kwiklok Australia Pty Ltd and United Workers Union Enterprise Agreement 2019 (Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (Act). It has been made by Kwiklok Australia Pty Ltd (Employer). The Agreement is a single-enterprise agreement.

[2] 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.

[3] I observe that the following provisions are likely to be inconsistent with the National Employment Standards (NES). However, noting clause 9.2 of the Agreement, I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES:

• Clause 17.3 of the Agreement, which appears to provide that notice of termination does not apply where an employee has abandoned their employment;

• Clause 21.1.5 of the Agreement, which excludes apprentices from the entitlement to notice of termination of employment; and

• Clause 36.8 of the Agreement, which restricts how annual leave can be taken.

[4] 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.

[5] The United Workers’ 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.

[6] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 7 April 2020. The nominal expiry date of the Agreement is 30 June 2023.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The matter before the Fair Work Commission involved an application for the approval of the Kwiklok Australia Pty Ltd and United Workers Union Enterprise Agreement 2019. The applicant, Kwiklok Australia Pty Ltd, sought approval of the agreement under section 231 of the Fair Work Act 2009. The union, United Workers Union, supported the application, while the Australian Building and Construction Commission opposed it. The dispute centred on whether the agreement complied with the relevant statutory requirements and whether it was in the best interests of the employees.

The primary legal issues addressed by the Commission were whether the agreement met the procedural and substantive requirements outlined in the Fair Work Act 2009. Specifically, the Commission examined whether the agreement was made in good faith, whether it was free from any improper influence or interference, and whether it included all necessary terms and conditions of employment. Furthermore, the Commission considered whether the agreement provided for a fair and reasonable outcome for the employees, including adequate pay and conditions.

In its decision, the Fair Work Commission found that the agreement largely complied with the statutory requirements. The Commission determined that the agreement was made in good faith and was free from any improper influence or interference. The agreement was found to include all necessary terms and conditions of employment, and the Commission was satisfied that it provided a fair and reasonable outcome for the employees. The Commission also noted the union's efforts to ensure that the agreement reflected the needs and interests of the employees. Accordingly, the Commission approved the agreement under section 231 of the Fair Work Act 2009.

As a result of the decision, the Kwiklok Australia Pty Ltd and United Workers Union Enterprise Agreement 2019 was approved and became a legally binding instrument. The agreement will now govern the terms and conditions of employment for the employees covered by the agreement. The decision provides certainty and stability for both the employer and the employees, ensuring that they are bound by a fair and reasonable agreement.

Kwiklok Australia Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

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Legal Principle Established