Waco Kwikform Ltd T/A Waco Kwikform Summary

[2024] FWCA 2050

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185 - Application for approval of a single-enterprise agreement

Waco Kwikform Ltd T/A Waco Kwikform

(AG2024/1578)

Waco Kwikform Limited (Perth Warehouse) Enterprise Agreement 2024

Building, metal and civil construction industries
COMMISSIONER LIM	PERTH, 4 JUNE 2024

Application for approval of the Waco Kwikform Limited (Perth Warehouse) Enterprise Agreement 2024

Waco Kwikform Ltd (the Applicant) has made an application for the approval of an enterprise agreement known as the Waco Kwikform Limited (Perth Warehouse) Enterprise Agreement 2024 (the Agreement). The application was made under s 185 of the Fair Work Act 2009 (Cth) (the Act). The Agreement is a single enterprise agreement.

The Applicant 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.

In compliance with s 190(4) of the Act, the bargaining representative’s views regarding the undertakings proffered were sought. They were provided with the opportunity to raise and address any objections they had to the undertakings proffered by the Applicant. No objection was raised.

Subject to the undertakings referred to above, and on the basis of the material contained in the application and accompanying declarations, I am satisfied that each of the requirements of ss 186, 187, 188, and 190 of the Act as are relevant to this application for approval have been met.

I note that the following clauses in the Agreement appear to be inconsistent with the National Employment Standards (NES):

(a)Parental leave: Clause 24.12 appears to exclude casual employees contrary to s 67 of the Act, which provides unpaid parental leave for regular casuals who have been employed on that basis for a sequence of periods of employment during a period of at least 12 months.
(b)Redundancy pay: Clause 25.3 provides that redundancy shall not be payable where the employer obtains suitable alternative employment for the employer, however this does not appear to be subject to an application to the Commission under s 120 of the Act.
(c)Deductions on termination: Clause 26.4(b) states that the Employer may reasonably deduct from any amount/s that the Employer owes to the Employee any amount/s that Employee owes the Employer to the full extent permitted by law. The amount/s that the Employer may recover under this provision includes, but is not limited to, any outstanding loans, advances, training costs, paid leave provided in advance or Base Wage paid to the Employee in respect of time not worked. The clause does not appear to limit deductions to wages only which raises the issue of deductions being made from NES entitlements.

However, I am satisfied that under clause 5.3 of the Agreement, the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

The Agreement was approved on 4 June 2024 and, in accordance with s 54, will operate from 11 June 2024. The nominal expiry date of the Agreement is 31 March 2028.

COMMISSIONER

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Annexure A

Waco Kwikform Ltd T/A Waco Kwikform applied for the approval of an enterprise agreement, the Waco Kwikform Limited (Perth Warehouse) Enterprise Agreement 2024. The application was made under section 185 of the Fair Work Act 2009 (Cth) and was subject to the Commission’s review. The primary legal issues before the Commissioner were whether the agreement met all the statutory requirements for approval and if it aligned with the National Employment Standards (NES). Additionally, the Commissioner had to consider the written undertakings provided by the Applicant and whether they would result in financial detriment to employees or substantial changes to the agreement.

The Commissioner found that the Applicant had provided written undertakings which did not cause financial detriment to employees nor result in substantial changes to the agreement. These undertakings were reviewed by the bargaining representative, who did not raise any objections. The Commissioner was satisfied that the agreement met the requirements of sections 186, 187, 188, and 190 of the Fair Work Act. However, some clauses in the agreement appeared inconsistent with the NES, including the exclusion of unpaid parental leave for casual employees, the conditions of redundancy pay, and the allowance of deductions beyond wages. Despite these inconsistencies, the Commissioner noted that clause 5.3 of the agreement ensured that the more beneficial NES entitlements would prevail where inconsistencies existed.

The Commissioner approved the Waco Kwikform Limited (Perth Warehouse) Enterprise Agreement 2024 on 4 June 2024, and it will come into effect on 11 June 2024. The agreement will remain in force until 31 March 2028, its nominal expiry date. This decision ensures that the agreement operates within the legal framework set by the Fair Work Act and protects the rights of employees in line with the NES.

Waco Kwikform Ltd T/A Waco Kwikform

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established