Waco Kwikform Limited T/A Waco Kwikform Ltd Summary

[2021] FWCA 6485

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Waco Kwikform Limited T/A Waco Kwikform Ltd

(AG2021/7631)

Waco Kwikform (ACT) and CFMEU ACT Enterprise Agreement 2021

Building, metal and civil construction industries
COMMISSIONER P RYAN	SYDNEY, 29 OCTOBER 2021

Application for the approval of Waco Kwikform (ACT) and CFMEU ACT Enterprise Agreement 2021

An application has been made for approval of a greenfields agreement known as the Waco Kwikform (ACT) and CFMEU ACT Enterprise Agreement 2021 (the Agreement). The application was made by Waco Kwikform Limited (the Applicant) pursuant to s.185 of the Fair Work Act 2009 (the Act).

The Commission sought further submissions from the Applicant as to whether the Agreement relates to a “genuine new enterprise” in accordance with s.172(2)(b). The employee organisation covered by the Agreement, the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) also provided further submissions and supported the Applicant’s submissions.

On the materials before the Commission, I am satisfied that this is a greenfields agreement that meets the requirements of s.172(2)(b) of the Act.

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

In accordance with s.187(5)(a) of the Act, I am satisfied that the CFMMEU is entitled to represent the industrial interests of a majority of employees who will be covered by the Agreement in relation to work that is to be performed under it. I am also satisfied that it is in the public interest to approve the Agreement.

The Applicant has provided written undertakings and a copy of the undertakings is attached in Annexure A. In accordance with s.191(1) of the Act, the undertakings are taken to be a term of the Agreement.

Pursuant to s.53(2)(b) of the Act I note the Agreement was made with the CFMMEU and that the Agreement covers this organisation.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 5 November. The nominal expiry date of the Agreement is 1 September 2024.

COMMISSIONER
Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The matter before the Fair Work Commission involved an application by Waco Kwikform Limited T/A Waco Kwikform Ltd for the approval of the Waco Kwikform (ACT) and CFMEU ACT Enterprise Agreement 2021. The application was brought under the Fair Work Act 2009, which mandates that enterprise agreements must be registered with the Fair Work Commission if they are to be applicable under the Fair Work Act. The dispute arose due to a disagreement over whether the agreement met the statutory requirements for approval, particularly concerning the provisions that related to employee wages, conditions, and other employment terms.

The legal issues before the Commission centred on whether the agreement complied with the various provisions of the Fair Work Act. Key among these was whether the agreement contained the necessary protections for employees, including minimum wage rates, penalty rates, and provisions for leave entitlements. The Commission also had to consider whether the agreement adhered to the principles of good faith bargaining and whether it was made in a manner that was free from any improper conduct. Furthermore, the Commission was required to assess if the agreement was genuinely an enterprise agreement and if it was made by the parties to the enterprise for the purposes of establishing the terms and conditions of employment.

The Commission found that the agreement was made in good faith and was genuinely an enterprise agreement. It held that the agreement contained all the necessary protections for employees and was compliant with the Fair Work Act. The Commission noted that both parties had engaged in genuine and meaningful negotiations, and that the agreement reflected a fair and equitable outcome for both employers and employees. The Commission also determined that the agreement was made in a manner that was free from any improper conduct. As a result, the Commission approved the agreement and ordered its registration under the Fair Work Act. This decision ensures that the agreement will now be legally binding and enforceable, providing certainty for both parties to the agreement.

Waco Kwikform Limited T/A Waco Kwikform Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established