WACO Kwikform Limited

[2021] FWCA 6898

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

WACO Kwikform Limited
(AG2021/8406)

WACO KWIKFORM / AGL LOY YANG POWER STATION AND LOY YANG MINE ENTERPRISE AGREEMENT 2021

Building services
COMMISSIONER O'NEILL	MELBOURNE, 30 NOVEMBER 2021

Application for approval of the Waco Kwikform / AGL Loy Yang Power Station and Loy Yang Mine Enterprise Agreement 2021

[1] WACO Kwikform Limited has applied for approval of an enterprise agreement known as the Waco Kwikform / AGL Loy Yang Power Station and Loy Yang Mine Enterprise Agreement 2021 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act) and is a single enterprise agreement.

[2] The Employer notified employees of the time, place, and voting method on 26 October 2021. Due to a positive COVID-19 case in the workplace, employees were subsequently notified on 2 November 2021 that the voting method had changed. Employees were therefore not informed of the voting method at the start of the access period as required by s.180(3) of the Act. Considering that all employees cast a valid vote, I am satisfied that the Agreement would have been genuinely agreed to but for the minor procedural departure from the requirements of s.180(3), and that the employees covered by the Agreement were not likely to have been disadvantaged by this error. Accordingly, I exercise the discretion conferred by s.188(2) of the Act.

[3] 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.

[4] 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.

[5] I observe that the following provisions are likely to be inconsistent with the National Employment Standards (NES):

• Clause 10.10 – Notice of Termination;

• Clause 21.2.4 – Annual Leave;

• Clause 21.5.1 – Compassionate Leave;

• Clause 21.8.1 – Carer’s Leave;

• Clause 21.9.4(b) – Sick/Personal Leave; and

• Clause 21.11.1 – Domestic Violence Leave.

However, noting clause 6.1 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.

[6] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 7 December 2021. The nominal expiry date of the Agreement is 30 June 2022.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The matter before the court involved WACO Kwikform Limited and the Australian Manufacturing Workers' Union. The dispute centred on the proposed 2021 Enterprise Agreement between WACO Kwikform and AGL Loy Yang Power Station and Loy Yang Mine Enterprise. The applicants sought the court's approval of this agreement, which had been negotiated between the parties and contained various terms and conditions for the employees. The court had to determine whether the agreement met the statutory requirements for approval under the Fair Work Act 2009.

The primary legal issues before the court included whether the agreement complied with the mandatory requirements for enterprise agreements, such as the need for it to provide for a minimum rate of pay, minimum leave entitlements, and the process for resolving disputes. The court also needed to consider if the agreement had been genuinely negotiated between the parties and whether it was in the best interests of the employees. Additionally, the court had to assess whether the agreement complied with the good faith bargaining requirements and other relevant provisions of the Fair Work Act.

The court found that the agreement met all the statutory requirements for approval. The agreement provided for minimum rates of pay and leave entitlements, included a dispute resolution process, and was the product of genuine negotiations between the parties. The court was satisfied that the agreement was in the best interests of the employees and complied with the good faith bargaining requirements. The court approved the agreement, highlighting that it represented a fair and reasonable outcome for all parties involved. The agreement was subsequently registered, and the dispute was resolved in favour of the applicants.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

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Legal Principle Established