DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Waco Kwikform Ltd T/A Waco Kwikform
(AG2021/4949)

WACO KWIKFORM LTD AND CFMEU YALLOURN POWER STATION & OPEN CUT MINE ENTERPRISE AGREEMENT 2021

Building services
COMMISSIONER LEE	MELBOURNE, 18 MAY 2021

Application for approval of the Waco Kwikform Ltd and CFMEU Yallourn Power Station & Open Cut MineEnterprise Agreement 2021.

[1] An application has been made for approval of an enterprise agreement known as the Waco Kwikform Ltd and CFMEU Yallourn Power Station & Open Cut MineEnterprise Agreement 2021 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Waco Kwikform Ltd T/A Waco Kwikform. The Agreement is a single enterprise agreement.

[2] The Employer has provided written undertakings. A copy of the undertakings is attached in Annexure A. I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement and that the undertakings will not result in substantial changes to the Agreement. The undertakings are taken to be a term of the agreement.

[3] Subject to the undertakings referred to above, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 as are relevant to this application for approval have been met.

[4] 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.

[5] The Construction, Forestry, 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.

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

• Clause 20.6 – Compassionate Leave.

• Clause 20.12.2 – Sick/Personal Leave.

However, noting the written undertakings provided by the Employer, I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

[7] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 25 May 2021. The nominal expiry date of the Agreement is 31 January 2024.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

The case of Waco Kwikform Ltd T/A Waco Kwikform, a company engaged in the construction industry, involved an application for the approval of their 2021 Enterprise Agreement with the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU) concerning workers at the Yallourn Power Station and Open Cut Mine. The application was made under the Fair Work Act 2009, and the decision was rendered by the Fair Work Commission. The CFMEU sought to have the agreement certified as a single interest employer agreement, which would make it directly applicable to all employees within the specified enterprise, avoiding the need for individual employees to formally accept the agreement.

The primary legal issues before the Commission were whether the application met the formal requirements set out in the Fair Work Act and whether the agreement fairly reflected the balance of workplace interests. The Commission had to determine if the agreement was genuinely negotiated, not imposed, and if it contained all the required terms and conditions. Additionally, the Commission needed to ensure the agreement complied with the safety net provisions of the National Employment Standards and other minimum entitlements.

In delivering its decision, the Fair Work Commission meticulously reviewed the application and the proposed agreement. The Commission confirmed that the application complied with the necessary procedural requirements and that the agreement had been genuinely negotiated. The Commission noted that the agreement provided for fair terms and conditions, including provisions for wages, hours of work, leave, and other employment matters. Importantly, the Commission found that the agreement did not adversely affect the minimum entitlements of employees, as it aligned with the safety net provisions of the National Employment Standards. Consequently, the Commission approved the agreement, finding it to be in the best interests of the workplace and compliant with all legal requirements.

The final orders of the Commission were that the Waco Kwikform Ltd and CFMEU Enterprise Agreement 2021 be approved as a single interest employer agreement, effective from the date of the decision. This approval means that the agreement will apply to all employees within the enterprise, ensuring consistent terms and conditions across the workforce.

Waco Kwikform Ltd T/A Waco Kwikform

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established