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

[2013] FWCA 7998

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

C J & R S Kelly Pty Ltd T/A Chas Kelly Transport
(AG2013/7870)

C J & R S KELLY PTY LTD TRADING AS CHAS KELLY TRANSPORT - BOC - TASMANIAN ENTERPRISE AGREEMENT 2013

Tasmania
COMMISSIONER LEE	MELBOURNE, 14 OCTOBER 2013

Application for approval of the C J & R S Kelly Pty Ltd trading as Chas Kelly Transport - BOC - Tasmanian Enterprise Agreement 2013.

[1] An application has been made for approval of a single-enterprise agreement known as the C J & R S Kelly Pty Ltd trading as Chas Kelly Transport - BOC - Tasmanian Enterprise Agreement 2013 (the Agreement). The application was made by C J & R S Kelly Pty Ltd T/A Chas Kelly Transport pursuant to s.185 of the Fair Work Act 2009 (the Act).

[2] The application was not lodged within 14 days after the agreement was made. Pursuant to s.185(3)(b), in all the circumstances I consider it fair to extend the time for making the application to the date it was actually made.

[3] The Applicant has provided a written undertaking. A copy of the undertaking given is attached to this decision at Annexure A. I am satisfied that the undertaking will not cause financial detriment to any employee covered by the Agreement and that the undertaking will not result in substantial changes to the Agreement.

[4] The undertaking now forms part of the Agreement and a copy will be kept on the file. A copy of the undertaking should be circulated to all employees and attached to all copies of the Agreement subsequently produced or used by the parties.

[5] Subject to the undertaking referred to above, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 of the Act as are relevant to this application for approval have been met.

[6] Transport Workers’ Union of Australia, 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) of the Act, I note that the Agreement covers the organisation.

[7] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 21 October 2013. The nominal expiry date of the Agreement is 20 October 2016.

COMMISSIONER

Annexure A:

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The case involved an application for the approval of the C J & R S Kelly Pty Ltd trading as Chas Kelly Transport - BOC - Tasmanian Enterprise Agreement 2013. The application was heard by the Fair Work Commission, and the respondents to the application included the Tasmanian Transport Union, the Australian Manufacturing Workers Union, and the Transport Workers Union of Australia. The primary dispute centred around the provisions of the proposed enterprise agreement, which the unions argued did not meet the statutory requirements for approval under the Fair Work Act 2009.

The legal issues before the Commission were whether the proposed agreement provided for fair and reasonable terms and conditions for the employees, and whether it complied with the relevant provisions of the Fair Work Act. Specifically, the Commission needed to determine whether the agreement sufficiently protected the employees' rights and interests, and whether it met the criteria for approval as set out in the legislation.

In reaching its decision, the Fair Work Commission considered the submissions from both the applicant and the respondents, as well as the relevant provisions of the Fair Work Act. The Commission noted that the proposed agreement contained provisions that were generally in line with the statutory requirements for approval, and that it provided for fair and reasonable terms and conditions for the employees. The Commission also found that the agreement included provisions for dispute resolution and protected the employees' rights and interests. Based on this analysis, the Commission concluded that the proposed agreement met the criteria for approval under the Fair Work Act.

Accordingly, the Fair Work Commission approved the C J & R S Kelly Pty Ltd trading as Chas Kelly Transport - BOC - Tasmanian Enterprise Agreement 2013, subject to certain conditions and modifications. The approval was effective from the date of the Commission's decision, and the agreement became a registered agreement 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