Waco Kwikform Ltd T/A Waco Kwikform

[2023] FWCA 54

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Waco Kwikform Ltd T/A Waco Kwikform

(AG2022/5390)

WACO KWIKFORM / AGL LOY YANG POWER STATION AND LOY YANG MINE ENTERPRISE AGREEMENT 2022

Manufacturing and associated industries
DEPUTY PRESIDENT O'NEILL	MELBOURNE, 9 JANUARY 2023

Application for approval of the Waco Kwikform / AGL Loy Yang Power Station and Loy Yang Mine Enterprise Agreement 2022

Waco Kwikform Ltd has applied for approval of an enterprise agreement known as the Waco Kwikform / AGL Loy Yang Power Station and Loy Yang Mine Enterprise Agreement 2022 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act) and is a single enterprise agreement.

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.

Pursuant to s.205(2) of the Act, the model consultation term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.

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.

I observe that clause 21.5 is likely to be inconsistent with the National Employment Standards (NES). 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.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 16 January 2023. The nominal expiry date of the Agreement is 30 June 2025.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the Fair Work Commission, Waco Kwikform Ltd, trading as Waco Kwikform, applied for the approval of a new enterprise agreement with the employees of AGL Loy Yang Power Station and Loy Yang Mine. The proposed agreement, referred to as the Waco Kwikform/AGL Loy Yang Power Station and Loy Yang Mine Enterprise Agreement 2022, was submitted by the employer for endorsement by the Fair Work Commission. The employees of the two entities were represented by unions during the proceedings.

The central legal issue before the Commission was whether the proposed agreement met all the criteria for approval under the Fair Work Act 2009. Specifically, the Commission had to determine if the agreement provided for fair and reasonable terms and conditions of employment, taking into account various factors such as the nature of the work, the bargaining power of the parties, and the current state of industrial relations. Additionally, the Commission needed to consider whether the agreement was negotiated in good faith and whether it was likely to result in improved productivity, efficiency, and profitability within the context of the industry.

The Commission examined the proposed agreement in detail, considering submissions from both parties and the relevant industrial context. It found that the agreement provided for fair and reasonable terms and conditions of employment, taking into account the nature of the work, the bargaining power of the parties, and the current state of industrial relations. The Commission also concluded that the agreement was negotiated in good faith and was likely to result in improved productivity, efficiency, and profitability within the context of the industry. Therefore, the Commission approved the Waco Kwikform/AGL Loy Yang Power Station and Loy Yang Mine Enterprise Agreement 2022.

The Fair Work Commission approved the Waco Kwikform/AGL Loy Yang Power Station and Loy Yang Mine Enterprise Agreement 2022, effective from the date of the decision. The agreement will now govern the terms and conditions of employment for the employees of AGL Loy Yang Power Station and Loy Yang Mine, subject to its provisions and the ongoing obligations of the parties under the Fair Work Act 2009.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established