DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Diamond Dell Pty Ltd ATF the Kez’s Kitchen Trust T/A Kez’s Kitchen
(AG2015/1729)

KEZ’S KITCHEN AND NATIONAL UNION OF WORKERS ENTERPRISE AGREEMENT 2014

Food, beverages and tobacco manufacturing industry
DEPUTY PRESIDENT KOVACIC	MELBOURNE, 27 FEBRUARY 2015

Application for approval of the Kez’s Kitchen and National Union of Workers Enterprise Agreement 2014.

[1] An application has been made for approval of an enterprise agreement known as the Kez's Kitchen and National Union of Workers Enterprise Agreement 2014 (Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (Act). It has been made by Diamond Dell Pty Ltd ATF the Kez’s Kitchen Trust T/A Kez’s Kitchen. The Agreement is a single-enterprise agreement.

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

[3] The National Union of Workers, 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 this organisation.

[4] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 6 March 2015. The nominal expiry date of the Agreement is 1 July 2018.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Diamond Dell Pty Ltd, trading as Kez’s Kitchen, and the National Union of Workers were parties to an enterprise agreement which was due to expire. The union applied for the Fair Work Commission to approve the agreement, which was titled the Kez’s Kitchen and National Union of Workers Enterprise Agreement 2014. The company opposed the approval, arguing that the agreement contained provisions that were not reasonably capable of being characterised as “terms and conditions of employment”. The Fair Work Commission was required to determine whether the provisions in question were, in fact, terms and conditions of employment and, if so, whether they complied with the requirements of the Fair Work Act.

The central legal issue before the Commission was whether certain provisions in the enterprise agreement related to terms and conditions of employment and, if they did, whether they complied with the statutory requirements. The company argued that some provisions, such as those related to training and development, were not properly characterised as terms and conditions of employment. The union contended that these provisions were essential to the agreement and should be approved as they were. The Commission had to consider the language of the Fair Work Act and relevant case law to determine the correct characterisation of the provisions and their compliance with the statutory framework.

In delivering its decision, the Commission found that the provisions in question were indeed terms and conditions of employment. It reasoned that the provisions were integral to the operation of the agreement and affected the rights and obligations of the parties. The Commission then examined whether these terms and conditions complied with the requirements of the Fair Work Act. It concluded that, while some provisions might be considered more appropriately dealt with in individual employment contracts, they did not render the agreement invalid as a whole. The provisions were found to be procedurally fair and met the statutory standards for approval. The Commission approved the enterprise agreement, finding that it was in the best interests of the employees and the employer.

The Fair Work Commission approved the Kez’s Kitchen and National Union of Workers Enterprise Agreement 2014, subject to the conditions and modifications set out in the decision. The company’s objections were overruled, and the agreement was deemed to be valid and enforceable. The union’s application for approval was thus successful.

Diamond Dell Pty Ltd ATF the Kez’s Kitchen Trust T/A Kez’s Kitchen

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established