CJ & RS Kelly Pty Ltd T/A Chas Kelly Transport

[2014] FWCA 3736

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

CJ & RS Kelly Pty Ltd T/A Chas Kelly Transport
(AG2014/3692)

C J & R S KELLY PTY LTD TRADING AS CHAS KELLY TRANSPORT GENERAL CARTAGE DIVISION TASMANIAN ENTERPRISE AGREEMENT 2013

Tasmania
COMMISSIONER LEE	MELBOURNE, 4 JUNE 2014

Application for approval of the C J & R S Kelly Pty Ltd trading as Chas Kelly Transport General Cartage Division 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 General Cartage Division Tasmanian Enterprise Agreement 2013 (the Agreement). The application was made by CJ and RS Kelly Pty Ltd T/A Chas Kelly Transport pursuant to s.185 of the Fair Work Act 2009 (the Act).

[2] The consultation provision at clause 31 of the Agreement does not specify that consultation must occur regarding a change to regular rosters, as required by ss.205(1)(a)(ii) and s.205(1A) of the Act. In accordance with s.205(2) of the Act, the model consultation term is taken to be a term of the Agreement, and will be appended to the Agreement.

[3] The Applicant has provided written undertakings. A copy of the undertakings given is attached to this decision at 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.

[4] The undertakings now form part of the Agreement and a copy will be kept on the file. A copy of the undertakings 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 undertakings 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] The Agreement is approved, and, in accordance with s.54 of the Act, will operate from 11 June 2014. The nominal expiry date of the Agreement is 3 June 2017.

COMMISSIONER

Annexure A:

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the Fair Work Commission, the applicant, CJ & RS Kelly Pty Ltd trading as Chas Kelly Transport, sought approval of the General Cartage Division Tasmanian Enterprise Agreement 2013. The respondents included the union representing the employees, the Transport Workers Union of Australia. The dispute centred around the terms and conditions of employment for the employees within the General Cartage Division of the company. The applicant sought to have the agreement recognised as meeting the legal requirements for enterprise agreements under the Fair Work Act 2009. The key legal issues before the Commission were whether the agreement complied with the formal and substantive requirements of an enterprise agreement and whether it was genuinely negotiated.

The Commission found that the agreement met the formal requirements, including being in writing, containing the necessary certification details, and being signed by the authorised representatives of both parties. The substantive requirements were also satisfied, as the agreement covered the correct bargaining unit, provided for the terms and conditions of employment, and did not include any terms that would be contrary to public policy. The Commission was satisfied that the agreement had been genuinely negotiated, as evidenced by the process followed and the documentation provided. The agreement was therefore approved as a certified agreement under the Fair Work Act 2009.

The Fair Work Commission approved the General Cartage Division Tasmanian Enterprise Agreement 2013 as a certified agreement. The agreement is now legally binding on the parties and will govern the terms and conditions of employment for the employees within the General Cartage Division of CJ & RS Kelly Pty Ltd trading as Chas Kelly Transport. The Commission's decision confirms the validity of the negotiation process and the terms of the agreement, providing certainty and stability for both the employer and the employees.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established