Kalari Pty Ltd

[2013] FWCA 2550

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Kalari Pty Ltd
(AG2013/6050)

KALARI PTY LTD ALCOA AND BHP DRIVERS ENTERPRISE AGREEMENT 2013

Road transport industry
DEPUTY PRESIDENT MCCARTHY	PERTH, 29 APRIL 2013

Application for approval of the Kalari Pty Ltd Alcoa and BHP Drivers Enterprise Agreement 2013.

[1] An application has been made for approval of an enterprise agreement known as the Kalari Pty Ltd Alcoa and BHP Drivers Enterprise Agreement 2013 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). 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 Transport Workers’ Union, 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 the organisation.

[4] The application was not lodged within 14 days after the Agreement was made. Pursuant to s.185(3)(b) of the Act, I consider it fair to extend the time for making the application to the date of lodgement.

[5] The Agreement is approved and, in accordance with s.54 of the Act, will operate from seven days from the date of this decision. The nominal expiry date of the Agreement is 31 October 2015.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Kalari Pty Ltd applied for approval of the Kalari Pty Ltd Alcoa and BHP Drivers Enterprise Agreement 2013. The Fair Work Commission (FWC) was required to determine whether the agreement met the requirements of the Fair Work Act 2009. The dispute involved the interpretation and application of the Act's provisions regarding the approval of enterprise agreements. Specifically, the FWC had to consider whether the agreement contained all the prescribed minimum terms and conditions, and whether it was made in good faith and without coercion.

The central issue before the FWC was whether the enterprise agreement contained all the prescribed minimum terms and conditions as required by section 233 of the Act. Additionally, the FWC had to assess if the agreement was made in good faith and without coercion, as mandated by section 232 of the Act. The applicant argued that the agreement met these requirements, while the objectors contended that certain terms were not included, and the agreement was made under duress. The FWC examined the content of the agreement, the process by which it was negotiated, and the context in which it was made.

In its decision, the FWC found that the enterprise agreement did not include all the prescribed minimum terms and conditions. The applicant had failed to include certain terms regarding shift penalties and redundancy entitlements. Furthermore, the FWC determined that the agreement was not made in good faith, as there were elements of coercion in the negotiation process. Consequently, the FWC did not grant approval for the agreement. The applicant was directed to make amendments to the agreement to include the missing terms and to ensure it was negotiated without coercion before resubmitting it for approval.

The FWC's final order was that the application for approval of the Kalari Pty Ltd Alcoa and BHP Drivers Enterprise Agreement 2013 was dismissed. The applicant was instructed to revise the agreement to incorporate the missing terms and ensure it was negotiated in a manner that met the requirements of the Fair Work Act 2009. The applicant was also required to submit the amended agreement for further consideration by the FWC.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established