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

[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.

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.

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.

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).

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.

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.

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.

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.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The case before the Fair Work Commission involved an application by C.J. & R.S. Kelly Pty Ltd, trading as Chas Kelly Transport, for approval of the Tasmanian Enterprise Agreement 2024. The agreement, referred to as the "Lysaght Cartage Division Tasmanian Enterprise Agreement 2024," was proposed to regulate the terms and conditions of employment for employees in the Lysaght Cartage Division of the company. The Commission was tasked with determining whether the agreement met the legal requirements for approval under the Fair Work Act 2009.

The legal issues central to the case revolved around whether the agreement complied with the provisions of the Fair Work Act, particularly concerning the scope of the agreement, the process by which it was negotiated, and its fairness to the employees. The company needed to demonstrate that the agreement was certified as a bargain, that the negotiation process was fair and in good faith, and that the terms of the agreement did not adversely affect the employees' interests. Furthermore, the Commission had to assess whether the agreement included all mandatory terms and conditions prescribed by the Fair Work Act.

In its decision, the Commission examined the evidence provided by the company regarding the negotiation process and the content of the agreement. The Commission found that the agreement had been negotiated in good faith and that it included all mandatory terms required by the Fair Work Act. The terms of the agreement were deemed to be fair and not detrimental to the employees, considering the industry context and the bargaining power of the parties. The Commission was satisfied that the agreement met the statutory criteria for approval and accordingly granted the application.

As a result, the Lysaght Cartage Division Tasmanian Enterprise Agreement 2024 was approved by the Fair Work Commission, effective from the date specified in the agreement. The approval ensured that the terms and conditions of employment for the employees in the division would be governed by this new agreement, subject to the requirements and protections provided under the Fair Work Act.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established