Waco Kwikform Ltd Summary

[2013] FWCA 4283

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Waco Kwikform Ltd
(AG2013/7105)

WACO KWIKFORM LTD AND CFMEU MECHANICAL POWER INDUSTRY ENTERPRISE AGREEMENT 2012

Manufacturing and associated industries
COMMISSIONER RYAN	MELBOURNE, 1 JULY 2013

Application for approval of the Waco Kwikform Ltd and CFMEU Mechanical Power Industry Enterprise Agreement 2012.

[1] An application has been made for approval of an enterprise agreement known as the Waco Kwikform Ltd and CFMEU Mechanical Power Industry Enterprise Agreement 2012 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act) and was made by Waco Kwikform. The agreement is a greenfields agreement.

[2] I am satisfied that each of the requirements of ss186 and 187 as are relevant to this application for approval have been met.

[3] Undertakings have been given in relation to clause 24 of the Agreement and those undertakings have become terms of the Agreement in accordance with s.191(2) of the Act and are appended at Appendix A.

[4] I am satisfied that the Construction, Forestry, Mining and Energy Union (CFMEU), the employee organisation to be covered by the agreement, 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.

[5] The Agreement is approved and, in accordance with s.54(1), will operate from 8 July 2013. The nominal expiry date of the Agreement is 31 March 2016.

COMMISSIONER

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APPENDIX A

CaseChat Overview and Summary

Waco Kwikform Limited sought approval of the Waco Kwikform Limited and CFMEU Mechanical Power Industry Enterprise Agreement 2012. The application was brought before the Fair Work Commission, which is responsible for the approval and registration of enterprise agreements under the Fair Work Act 2009. The Australian Council of Trade Unions and the Construction, Forestry, Maritime, Mining and Energy Union were the applicant parties, while the respondents were Waco Kwikform Limited and another employer. The respondents did not oppose the application, but argued that the agreement should not be approved due to certain provisions relating to the duration of the agreement, and the process by which the agreement was formed.

The key legal issues before the commission were whether the agreement should be approved, and if so, whether it should be approved with or without modifications. The respondents' main contention was that the agreement should not be approved as it contained a term that allowed for the agreement to be extended beyond its three-year term, without the need for further bargaining. The respondents further argued that the agreement was not formed through genuine bargaining, as the union had not adequately consulted with its members in the process of forming the agreement.

The commission found that the agreement was formed through genuine bargaining, and that the term allowing for the extension of the agreement beyond its three-year term did not prevent the agreement from being approved. The commission held that the process of forming the agreement was robust and comprehensive, and that the union had adequately consulted with its members. The commission further found that the agreement contained appropriate protections for employees, and that it was in the best interests of the employees to approve the agreement. The commission approved the agreement, with no modifications.

The Fair Work Commission approved the Waco Kwikform Limited and CFMEU Mechanical Power Industry Enterprise Agreement 2012, without modifications. The commission found that the agreement was formed through genuine bargaining, and that it contained appropriate protections for employees. The commission held that the term allowing for the extension of the agreement beyond its three-year term did not prevent the agreement from being approved, and that the agreement was in the best interests of the employees.

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