C.J & R.S Kelly Pty Ltd T/A Chas Kelly Transport

[2025] FWCA 410

[2025] FWCA 410

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

C.J & R.S Kelly Pty Ltd T/A Chas Kelly Transport

(AG2024/4621)

C.J. & R.S. KELLY PTY LTD TRADING AS CHAS KELLY TRANSPORT LYSAGHT CARTAGE DIVISION TASMANIAN ENTERPRISE AGREEMENT 2024

Road transport industry
COMMISSIONER FOX	MELBOURNE, 31 JANUARY 2025

Application for approval of the C.J. & R.S. Kelly Pty Ltd trading as Chas Kelly Transport Lysaght Cartage Division Tasmanian Enterprise Agreement 2024.

1. An application has been made for approval of an enterprise agreement known as the C.J. & R.S. Kelly Pty Ltd trading as Chas Kelly Transport Lysaght Cartage Division Tasmanian Enterprise Agreement 2024 (the Agreement). The Application was made pursuant to s.185 of the Fair Work Act 2009 (Cth) (the Act). It has been made by C.J & R.S Kelly Pty Ltd T/A Chas Kelly Transport (the Employer). The Agreement is a single enterprise agreement.

1. The Notice of Employee Representational Rights issued to employees on 15 July 2024 titled the Agreement as the ‘Lysaght Cartage Enterprise Agreement’ whilst the Agreement is titled the ‘C.J. & R.S. Kelly Pty Ltd trading as Chas Kelly Transport Lysaght Cartage Division Tasmanian Enterprise Agreement 2024’. I am satisfied having regard to the Full Bench decision in Huntsman Chemical Company Australia Pty Ltd T/A RMAX Rigid Cellular Plastics & Others[1] that this constitutes a minor technical or procedural error for the purposes of s.188(5)(a) of the Act. I am also satisfied that employees were not likely to have been disadvantaged by this error.

1. Further, I am satisfied that each requirement of ss.186, 187 and 188 as are relevant to this application for approval have been met. For the purposes of the better off overall test, I have had regard to each of the matters in s.193A(2)-(7).

1. I observe that the following clauses are likely to be inconsistent with the National Employment Standards (NES):

• Compassionate Leave: Clause 14(a) of the Agreement provides that where an employee would otherwise be entitled to compassionate leave but such day or days occur on a day or days not rostered as a work day for that Employee, the Employee shall not be entitled to compassionate leave. This is inconsistent with the NES as s.104 of the Fair Work Act 2009 provides an entitlement to 2 days of compassionate leave for each permissible occasion, and s.105(2)(b) of the Act provides that an employee may take compassionate leave for a particular permissible occasion as 2 separate periods of 1 day each.

1. However, noting clause 3 of the Agreement, I am satisfied that the more beneficial entitlements of the NES in the Act will prevail where there is an inconsistency between the Agreement and the NES.

1. The Agreement does not contain a delegates’ rights term, as required by s.205A(1) of the Act. The workplace delegates’ rights term in Clause 29A of the Road Transport and Distribution Award 2020 is taken to be a term of the Agreement.

1. The Agreement is approved, and in accordance with s.54 of the Act, will operate from 7 February 2025. The nominal expiry date of the Agreement is 31 January 2029.

COMMISSIONER

[1] [2019] FWCFB 318.

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