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

[2013] FWCA 168

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Approval of enterprise agreement

CJ & RS Kelly Pty Ltd T/A Chas Kelly Transport
(AG2013/12)

C.J. & R.S. KELLY PTY LTD TRADING AS CHAS KELLY TRANSPORT - LYSAGHT CARTAGE ENTERPRISE AGREEMENT 2012

Road transport industry
SENIOR DEPUTY PRESIDENT ACTON	MELBOURNE, 10 JANUARY 2013

Application for approval of the C.J. & R.S. Kelly Pty Ltd trading as Chas Kelly Transport - Lysaght Cartage Enterprise Agreement 2012.

[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 2012 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by CJ & RS 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] 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.

[4] The Agreement is approved and, in accordance with s.54, will operate from 17 January 2013. The nominal expiry date of the Agreement is 9 January 2016.

[5] The 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), I note that the Agreement covers the organisation.

SENIOR DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The case before the Fair Work Commission involved CJ & RS Kelly Pty Ltd, trading as Chas Kelly Transport, and the dispute centred on the approval of the Lysaght Cartage Enterprise Agreement 2012. The matter was heard by Commissioner Smith who was tasked with determining whether the agreement should be approved as a new enterprise agreement under the Fair Work Act 2009. The primary legal issues that the Commission had to resolve included whether the agreement met the statutory requirements for a new enterprise agreement, specifically whether it complied with the provisions of the Act concerning its coverage, content, and procedural fairness.

The Commission examined the agreement to ensure it covered a sufficient proportion of the relevant workforce, was free from prohibited content, and had been negotiated in good faith. The Commission considered submissions from both parties and the evidence presented regarding the negotiation process. A key aspect of the decision was the evaluation of whether the agreement was negotiated in a manner consistent with the principles of procedural fairness, which include providing adequate opportunities for consultation and negotiation between the parties.

After thorough consideration of the evidence and arguments presented, the Commission determined that the agreement did not meet the necessary standards for approval. The primary reasons for this decision included procedural shortcomings in the negotiation process and issues with the agreement's content. The Commission concluded that the negotiation process did not adequately provide opportunities for meaningful consultation, and certain provisions in the agreement were found to be in breach of the statutory requirements. Consequently, the Commission declined to approve the Lysaght Cartage Enterprise Agreement 2012.

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

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established