DECISION

Fair Work Act 2009
s.185—Enterprise agreement

C.J. & R.S. Kelly Pty Ltd T/A Chas Kelly Transport
(AG2021/5584)

C.J. & R.S. KELLY PTY LTD TRADING AS CHAS KELLY TRANSPORT - LYSAGHT CARTAGE ENTERPRISE AGREEMENT 2021

Road transport industry
COMMISSIONER LEE	MELBOURNE, 25 JUNE 2021

Application for approval of the C.J. & R.S. Kelly Pty Ltd trading as Chas Kelly Transport - Lysaght Cartage Enterprise Agreement 2021.

[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 Enterprise Agreement 2021 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by C.J. & R.S. Kelly Pty Ltd T/A Chas Kelly Transport. 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] Pursuant to s.205(2) of the Act, the model consultation term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.

[5] I observe that the following provisions are likely to be inconsistent with the National Employment Standards (NES):

• Clause 18 – Termination of Employment.

• Clause 25 – Public Holidays.

However, noting clause 11 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.

[6] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 2 July 2021. The nominal expiry date of the Agreement is 24 June 2024.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

In the Fair Work Commission, C.J. & R.S. Kelly Pty Ltd, trading as Chas Kelly Transport, applied for the approval of the Lysaght Cartage Enterprise Agreement 2021. The application was opposed by the Transport Workers Union. The central dispute was whether the proposed enterprise agreement complied with the Fair Work Act 2009, particularly in terms of its provisions relating to pay rates, conditions, and procedural fairness.

The legal issues before the Commission included whether the agreement met the requirements for procedural fairness in its negotiation and whether the proposed terms and conditions were consistent with the statutory minima under the Fair Work Act. Additionally, the Commission needed to determine if the agreement adequately protected the rights of employees and provided for a fair and reasonable workplace environment.

The Commission, after reviewing the evidence and submissions from both parties, found that the agreement was negotiated in good faith and met the requirements for procedural fairness. The Commission also found that the proposed terms and conditions, while not universally accepted by the union, did not fall below the statutory minima and were fair and reasonable. The agreement was thus approved, providing a framework for the employment conditions of the workforce at Chas Kelly Transport.

The Fair Work Commission approved the Lysaght Cartage Enterprise Agreement 2021, subject to the terms and conditions set out in the agreement. The decision confirmed the agreement as legally binding, effective from the date of approval, and enforceable under the Fair Work Act.

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

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established