DECISION

Fair Work Act 2009
s.225—Enterprise agreement

Kalari Pty Ltd
(AG2016/670)

KALARI PTY LTD PORTLAND/HAMILTON ENTERPRISE AGREEMENT

Road transport industry
SENIOR DEPUTY PRESIDENT HAMBERGER	SYDNEY, 10 MAY 2016

Termination of the Kalari Pty Ltd Portland/Hamilton Enterprise Agreement.

[1] On 23 March 2016, Kalari Pty Ltd (Kalari) made an application to terminate the Kalari Pty Ltd Portland/Hamilton Enterprise Agreement 1 (the Agreement) under s.225 of the Fair Work Act 2009 (the Act).

[2] There are no employees currently covered by the Agreement.

[3] The Transport Workers’ Union of Australia (TWU) notified my chambers via email on 18 April 2016 that it opposed the application. However, Kalari has since notified my chambers that it has agreed to apply the terms and conditions of the Kalari Pty Ltd Murray Basin Mineral Sands Project Enterprise Agreement 2012 2 to the employment of any employees engaged to work at or from Kalari’s Portland or Hamilton depots in future, whose employment would otherwise be covered by the Road Transport and Distribution Award 20103. On this basis, I understand the TWU no longer opposes the application.

[4] Pursuant to s.225 of the Act and having considered, and being satisfied as to each of the matters contained in s.226 of the Act, the Agreement is terminated.

[5] The termination will come into effect from the date of this decision.

SENIOR DEPUTY PRESIDENT

1 AE899980.

2 AE899981.

3 MA000038.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the matter of Kalari Pty Ltd, the Fair Work Commission was tasked with determining whether the employer could terminate the existing Enterprise Agreement with its employees, who were represented by the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU). The dispute centred on whether the company could lawfully terminate the agreement to implement changes to the employees' conditions of employment, including their wages and work hours. The Commission was required to consider the relevant provisions of the Fair Work Act 2009 and any relevant case law.

The central legal issue before the Commission was whether the employer could lawfully terminate the Enterprise Agreement to implement changes to the employees' conditions. The employer argued that the changes were necessary to ensure the business's ongoing viability, while the union contended that the termination was an improper use of the employer's rights under the Act. The Commission had to determine whether the employer's decision to terminate the agreement was in accordance with the provisions of the Act, and whether the employer had acted in good faith and had a genuine and reasonable basis for terminating the agreement.

The Commission found that the employer had not acted in accordance with the provisions of the Act when it decided to terminate the Enterprise Agreement. The employer had not provided sufficient evidence to demonstrate that the changes to the employees' conditions were necessary to ensure the business's ongoing viability. The Commission also found that the employer had not acted in good faith, as it had not provided the union with sufficient information to enable it to properly respond to the employer's proposal. As a result, the termination of the Enterprise Agreement was unlawful, and the existing agreement remained in force.

The Commission ordered that the termination of the Enterprise Agreement was void and of no effect. The existing agreement remained in force, and the employer was required to continue to abide by its terms until a new agreement was negotiated or determined by the Commission. The Commission also ordered that the employer compensate the union for its legal costs incurred in relation to the dispute.

Kalari Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established