DECISION

Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement

Kalari Pty Ltd
(AG2015/5992)

Road transport industry
COMMISSIONER ROBERTS	SYDNEY, 1 FEBRUARY 2016

Application for approval of the Kalari Pty Ltd (South Australia Bulk Liquids) Enterprise Agreement 2015.

[1] An application was made on 29 October 2015 for approval of an enterprise agreement known as the Kalari Pty Ltd (South Australia Bulk Liquids) Enterprise Agreement 2015 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act) by Kalari Pty Ltd (Kalari or the Company). The Agreement is a single-enterprise agreement.

[2] On 13 November 2015 the Transport Workers Union of Australia, SA/NT Branch (the TWU or the Union) gave notice pursuant to s.183 of the Act that it wishes to be covered by the Agreement. However in its form F18 (Statutory declaration of employee organisation in relation to an application for approval of an enterprise agreement), the Union stated that the TWU did not participate in bargaining for the Agreement and did not support its approval. The Union alleges deficiencies in Kalari’s form F17, a failure by Kalari to meet the good faith bargaining requirements of the Act and failure of the Agreement to meet the Better Off Overall Test (the BOOT). There were no employee bargaining representatives appointed but three individuals were involved in the bargaining process. Each of those persons filed a form F18A supporting the Company’s application.

[3] A Directions hearing was held in Sydney on 27 November 2015. Ms T Walton appeared for the TWU. Mr W Swain and Mr D Haynes appeared for the Company by telephone link. At the hearing, the parties agreed that the application be dealt with ‘on the papers’ and directions were subsequently issued for the filing of written submissions. That process ended on 15 December 2015.

Background

[4] The Agreement which is the subject of these proceedings is to replace the Kalari Pty Ltd (South Australia Bulk Liquids) Enterprise Agreement 2012 (the 2012 Agreement). The Agreement covers employees of the Company engaged as drivers in its operations in South Australia. The TWU is covered by the 2012 Agreement, which has a nominal expiry date of 12 March 2016.

[5] The relevant modern award and reference instrument is the Road Transport and Distribution Award 2010 (the Award).

[6] In its form F17 (Employer’s statutory declaration in support of an application for approval of an enterprise agreement), Kalari set out the following terms or conditions of employment that are allegedly more beneficial than equivalent terms and conditions in the Award:

“Clause 18 & 21 Rates of pay and increases
Clause 32.1 Overtime rest break/allowance
Clause 35.5 Annual leave at half pay
Clause 43.1 paid Maternity leave
Clause 45 Overnight allowance
Clause 16 Dangerous Goods allowance
Clause 49 Salary sacrifice
Clause 52 Reimbursement of car parking costs
Clauses 67 & 68 Redundancy”

[7] The Company’s form F17 does not identify any terms or conditions of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2016] FWC 525
Decision Date: 1 FEBRUARY 2016

CaseChat Overview and Summary

Kalari Pty Ltd, an employer in the bulk liquids industry, sought approval of its enterprise agreement with its employees. The application was made to the Fair Work Commission, which was required to determine whether the agreement met the necessary criteria for approval under the Fair Work Act 2009. The legal issues before the Commission involved assessing whether the agreement provided for the employees' pay and conditions in an effective and fair manner, and whether it complied with the procedural requirements of the Act.

The Fair Work Commission examined the agreement to determine if it met the requirements for approval. It considered whether the agreement provided for fair and effective pay and conditions for the employees, and whether it complied with the procedural requirements of the Act. The Commission assessed whether the agreement was in line with the safety net provisions of the National Employment Standards, and whether it provided for minimum rates of pay, leave entitlements, and other terms and conditions that were no less favourable than the applicable awards or registered agreements. The Commission also evaluated whether the agreement had been made in good faith and whether the required consultation processes had been followed.

After considering the evidence and submissions presented, the Fair Work Commission determined that the agreement met the necessary criteria for approval. The Commission found that the agreement provided for fair and effective pay and conditions for the employees, and that it complied with the procedural requirements of the Act. The Commission approved the Kalari Pty Ltd (South Australia Bulk Liquids) Enterprise Agreement 2015, which will now apply to the employees covered by the agreement.

The Fair Work Commission made an order approving the Kalari Pty Ltd (South Australia Bulk Liquids) Enterprise Agreement 2015, effective from the date of the Commission's decision. The agreement will now apply to the employees covered by the agreement, providing them with the terms and conditions of employment set out in the agreement.

Orders