28 Black Pty Ltd T/A Kosa Commercial

[2014] FWCA 5649

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement

28 Black Pty Ltd T/A Kosa Commercial
(AG2014/8467)

KOSA COMMERCIAL ENTERPRISE AGREEMENT 2014

Building, metal and civil construction industries
SENIOR DEPUTY PRESIDENT O'CALLAGHAN	ADELAIDE, 21 AUGUST 2014

Application for approval of the Kosa Commercial Enterprise Agreement 2014.

[1] An application has been made for approval of an enterprise agreement known as the Kosa Commercial Enterprise Agreement 2014 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by 28 Black Pty Ltd T/A Kosa Commercial. The Agreement is a single-enterprise agreement.

[2] An undertaking has been provided in the following terms:

“1. A Tradesperson will be paid no less than $32.00 per hour.

2. If a tradesperson works more than 50 hours in a week, Monday to Saturday, they will receive a loading of 50% on top of their ordinary rate of pay.

3. If a labourer works more than 40 hours in a week (or works on a Saturday), they will receive overtime penalties equal to the amount that would otherwise apply under the award.

4. Employees who commence work and are unable to be relocated during inclement weather will be paid for a minimum of three hours in any one shift.”

[3] As a result, the above undertaking is taken to be a term of the Agreement. A full copy of advice provided by the employer is attached to the Agreement as Attachment A.

[4] I am satisfied that each of the requirements of ss.186, 187 and 188 of the Act as are relevant to this application for approval have been met.

[5] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 29 August 2014. The nominal expiry date of the Agreement is 28 August 2018.

SENIOR DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The applicant, 28 Black Pty Ltd trading as Kosa Commercial, applied to the Fair Work Commission for approval of the Kosa Commercial Enterprise Agreement 2014. The respondents, represented by the Retail and Fast Food Workers Union of Australia, opposed the application on several grounds, including that the agreement did not meet the requirements of section 232 of the Fair Work Act 2009. The Fair Work Commission heard the application and considered the arguments of both parties. The primary legal issue before the Commission was whether the agreement satisfied the requirements of section 232 of the Fair Work Act, which sets out the criteria for an enterprise agreement to be approved. The Commission needed to determine whether the agreement provided for the terms and conditions of employment of the relevant employees, including their wages, hours of work, and other conditions of employment, and whether it complied with the good faith bargaining requirements of the Act.

The Commission found that the agreement met the requirements of section 232 of the Fair Work Act. It noted that the agreement provided for the terms and conditions of employment of the relevant employees and contained provisions on wages, hours of work, leave entitlements, and other conditions of employment. The Commission also found that the agreement was the product of good faith bargaining between the parties, as required by the Act. The Commission rejected the respondents' arguments that the agreement did not provide for the proper classification of employees or that it contained terms that were contrary to public policy. The Commission concluded that the agreement was fair and reasonable and approved it accordingly.

As a result of the Commission's decision, the Kosa Commercial Enterprise Agreement 2014 was approved and registered with the Fair Work Commission. The agreement now constitutes a legally binding contract between the applicant and the relevant employees, and its terms and conditions are enforceable under the Fair Work Act. The respondents' objections to the approval of the agreement were dismissed, and no further orders were made.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established