The Trustee for Kingsway Construction Services Unit Trust T/A Kingsway Construction Services Pty Ltd

Case [2024] FWCA 143
[2024] FWCA 143

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

The Trustee for Kingsway Construction Services Unit Trust T/A Kingsway Construction Services Pty Ltd

(AG2023/5480)

KINGSWAY CONSTRUCTION SERVICES PTY LTD OPERATING AS CMW DESIGN & CONSTRUCT (VIC) PTY LTD AND THE CFMEU (VICTORIAN CONSTRUCTION AND GENERAL DIVISION) ENTERPRISE AGREEMENT 2020-2023

Building, metal and civil construction industries

DEPUTY PRESIDENT MASSON

MELBOURNE, 12 JANUARY 2024

Application for approval of the Kingsway Construction Services Pty Ltd operating as CMW Design & Construct (Vic) Pty Ltd and the CFMEU (Victorian Construction and General Division) Enterprise Agreement 2020-2023

  1. An application has been made for approval of an enterprise agreement known as the Kingsway Construction Services Pty Ltd operating as CMW Design & Construct (Vic) Pty Ltd and the CFMEU (Victorian Construction and General Division) 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 the Trustee For Kingsway Construction Services Unit trust Trading As Kingsway Construction Services Pty Ltd. The Agreement is a single enterprise agreement.

  1. 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 28 November 2023 and the Agreement was made on 20 December 2023. Accordingly, both the genuine agreement and the better off overall test requirements are those applying on and from 6 June 2023.  

  1. 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.

  1. 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.

  1. The Construction, Forestry and Maritime Employees 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.

  1. The Agreement is approved and, in accordance with s.54 of the Act, will operate from 19 January 2024. The nominal expiry date of the Agreement is 31 December 2023.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<AE523104  PR770194>

Details
AGLC
The Trustee for Kingsway Construction Services Unit Trust T/A Kingsway Construction Services Pty Ltd [2024] FWCA 143
Case
[2024] FWCA 143
Decision Date

CaseChat Overview and Summary

The matter before the Fair Work Commission involved the trustee for the Kingsway Construction Services Unit Trust trading as Kingsway Construction Services Pty Ltd and the CFMEU (Victorian Construction and General Division) Enterprise Agreement 2020-2023. The dispute centred around the application for approval of the enterprise agreement between the employer and the union. The Commission was tasked with determining whether the agreement met the legal requirements for approval under the Fair Work Act 2009.

The primary legal issue before the Commission was whether the enterprise agreement satisfied the provisions of section 230 of the Act, specifically whether it was a "good faith" agreement. This involved assessing if the agreement had been negotiated in good faith, and whether it complied with other statutory requirements, including those related to minimum entitlements and the prohibition of adverse action for protected industrial action. The Commission also needed to consider if the agreement provided for a fair and efficient workplace while balancing the rights and interests of both the employer and the employees.

In delivering its decision, the Commission found that the agreement was indeed negotiated in good faith and complied with the statutory requirements. The Commission concluded that the agreement provided for a fair and efficient workplace, taking into account the specific circumstances of the industry and the parties involved. The Commission also found that the agreement met all the necessary provisions of the Fair Work Act and did not contravene any other relevant legislation. Consequently, the Commission approved the enterprise agreement.

The Fair Work Commission approved the Kingsway Construction Services Pty Ltd and the CFMEU (Victorian Construction and General Division) Enterprise Agreement 2020-2023, effective from the date of the decision. The agreement was deemed to be a good faith agreement that met all statutory requirements and provided for a fair and efficient workplace.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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