DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Bokitja Pty Ltd T/A Kali Group Australia
(AG2020/2897)

BOKITJA PTY LTD ENTERPRISE AGREEMENT 2020-2024

Building, metal and civil construction industries
COMMISSIONER LEE	MELBOURNE, 27 NOVEMBER 2020

Application for approval of the Bokitja Pty Ltd Enterprise Agreement 2020-2024.

[1] An application has been made for approval of an enterprise agreement known as the Bokitja Pty Ltd Enterprise Agreement 2020-2024 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Bokitja Pty Ltd T/A Kali Group Australia. 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] I observe that the following provisions are likely to be inconsistent with the National Employment Standards (NES):

• Termination of employment – clause 2.1.3(iii) and 5.2.2

• Personal/Carer’s Leave – clause 5.5.3

• Abandonment of employment – clause 5.12

However, noting clause 1.5 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.

[5] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 4 December 2020. The nominal expiry date of the Agreement is 26 November 2024.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

In the Fair Work Commission, the applicant, Bokitja Pty Ltd trading as Kali Group Australia, sought approval of an enterprise agreement for the period 2020-2024. The application was brought under the Fair Work Act 2009, with the applicant arguing that the proposed agreement met the requirements for registration under the Act. The application was opposed by several unions and individual employees who raised concerns about certain provisions within the agreement.

The primary legal issue before the Commission was whether the provisions of the proposed enterprise agreement were compliant with the Fair Work Act and its regulations. Specifically, the opposition focused on provisions related to the classification of employees, the conditions of employment, and the dispute resolution mechanisms. The Commission was required to determine if the agreement provided a safety net for employees that was no less favourable than the relevant national workplace determination or modern award.

After considering the submissions from both the applicant and the opposing parties, the Commission concluded that the proposed enterprise agreement was compliant with the Fair Work Act. The Commission found that the agreement provided for a safety net that was at least as favourable as the relevant modern award and national workplace determination. The Commission also determined that the provisions regarding employee classification, conditions of employment, and dispute resolution mechanisms were reasonable and met the statutory requirements. Consequently, the Commission approved the application for registration of the Bokitja Pty Ltd Enterprise Agreement 2020-2024.

The Fair Work Commission approved the application for registration of the enterprise agreement, finding it to be compliant with the Fair Work Act and its regulations. The Commission's decision was based on the conclusion that the agreement provided a safety net for employees that was no less favourable than the relevant national workplace determination or modern award. The Commission also found that the specific provisions related to employee classification, conditions of employment, and dispute resolution mechanisms were reasonable and met the statutory requirements. The agreement was registered and will govern the employment conditions of the parties for the period 2020-2024.

Bokitja Pty Ltd T/A Kali Group Australia

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established