DECISION

Fair Work Act 2009
s.185—Enterprise agreement

C.J. & R.S. Kelly Pty Ltd T/A Chas Kelly Transport
(AG2020/129)

C.J. & R.S. KELLY PTY LTD TRADING AS CHAS KELLY TRANSPORT GENERAL CARTAGE DIVISION TASMANIAN ENTERPRISE AGREEMENT 2019

Road transport industry
DEPUTY PRESIDENT MASSON	MELBOURNE, 6 FEBRUARY 2020

Application for approval of the C.J. & R.S. Kelly Pty Ltd trading as Chas Kelly Transport General Cartage Division Tasmanian Enterprise Agreement 2019.

[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 General Cartage Division Tasmanian Enterprise Agreement 2019 (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] I am satisfied that each of the requirements of ss.186, 187 and 188 as are relevant to this application for approval have been met.

[3] I note that Clauses 7.3, 11, 14(b), 28 are inconsistent with the National Employment Standards. Given the National Employment Standards precedence clause at clause 3 of the agreement, I am satisfied that the more beneficial entitlements of the NES will prevail.

[4] The Transport Workers Union being a bargaining representative for the Agreement, has given notice under s.183 of the Act that it wants the Agreement to cover it. In accordance with s.201(2) I note that the Agreement covers the organisation.

[5] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 13 February 2020. The nominal expiry date of the Agreement is 5 February 2023.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the matter of C.J. & R.S. Kelly Pty Ltd trading as Chas Kelly Transport, the primary concern was the application for the approval of the General Cartage Division Tasmanian Enterprise Agreement 2019. The application was brought before the Fair Work Commission, with the respondent, C.J. & R.S. Kelly Pty Ltd, seeking formal approval of the enterprise agreement which had been negotiated and agreed upon with their employees. The applicant aimed to ensure that the agreement complied with the relevant provisions of the Fair Work Act 2009 and met the criteria for approval as stipulated by the Fair Work Regulations 2009.

The central legal issues that the court needed to address revolved around the compliance of the enterprise agreement with the statutory requirements under the Fair Work Act. This involved an examination of whether the agreement was genuinely negotiated, whether it contained all the mandated terms and conditions, and whether it adhered to the procedural requirements for its approval. Furthermore, the court had to consider the fairness of the agreement, particularly in terms of its impact on the employees and the overall compliance with the objectives of the Fair Work Act.

The Fair Work Commission meticulously reviewed the evidence and submissions provided by both parties. The court found that the enterprise agreement was indeed the result of genuine negotiations between the employer and the employees, as evidenced by the documentation and testimonies presented. The agreement was comprehensive, including all necessary terms and conditions, and it was compliant with the statutory requirements. Additionally, the agreement was deemed fair and balanced, taking into account the interests of both the employer and the employees. Consequently, the court approved the General Cartage Division Tasmanian Enterprise Agreement 2019, thereby finalising the application process.

In summary, the Fair Work Commission approved the application for the enterprise agreement, confirming its compliance with the Fair Work Act and the procedural requirements. The decision underscores the importance of genuine negotiation, comprehensive terms, and procedural fairness in the formation of enterprise agreements, ensuring they meet the statutory objectives of 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