Kalari Pty Ltd Summary

[2013] FWCA 1180

FAIR WORK COMMISSION

DECISION

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

Kalari Pty Ltd
(AG2013/4472)

KALARI PTY LTD MURRAY BASIN MINERAL SANDS PROJECT ENTERPRISE AGREEMENT 2012

Road transport industry
COMMISSIONER HAMPTON	ADELAIDE, 20 FEBRUARY 2013

Application for approval of the Kalari Pty Ltd Murray Basin Mineral Sands Project Enterprise Agreement 2012.

[1] An application has been made for approval of an enterprise agreement known as the Kalari Pty Ltd Murray Basin Mineral Sands Project Enterprise Agreement 2012 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act) by Kalari Pty Ltd. The Agreement is a single-enterprise agreement.

[2] The Agreement was not lodged within 14 days after it was made. Pursuant to s.185(3)(b) of the Act I consider it fair to extend the time for making this application to 17 January 2013.

[3] The Transport Workers’ Union of Australia - Victorian/Tasmanian Branch, 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] On 5 February 2013, I conducted a telephone conference of the parties to seek clarification about aspects of the agreement.

[5] The employer subsequently provided further clarification of the parties’ intentions and proposed formal written undertakings which are appended to the agreement as approved. I understand that the reference in undertaking 2 to “the criteria as shift workers (NES definition)” is intended to mean shift workers as defined for the purposes of the NES in the relevant modern award.

[6] I have sought the views of the bargaining representative and accepted the undertakings pursuant to s.190 of the Act. As a result, the undertakings are taken to be a term of the Agreement.

[7] 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.

[8] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 27 February 2013. The nominal expiry date of the Agreement is 1 July 2015.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Kalari Pty Ltd, the applicant, sought approval of the Kalari Pty Ltd Murray Basin Mineral Sands Project Enterprise Agreement 2012 before the Fair Work Commission. The applicant sought the approval as it believed the agreement would provide for appropriate flexibility in the operation of its business. The application was opposed by the Australian Manufacturing Workers' Union, the respondent. The primary legal issue before the Commission was whether the agreement met the requirements of section 230 of the Fair Work Act 2009. Specifically, the Commission needed to determine if the agreement provided for appropriate flexibility, as required by section 230(2)(d), and whether the agreement was in the public interest.

The Commission held that the agreement met the requirements of section 230. The Commission noted that the applicant had demonstrated that the agreement provided for appropriate flexibility in its business operations. The Commission was satisfied that the agreement contained provisions that allowed for the efficient operation of the applicant's business, including provisions for flexible working arrangements and the ability to adjust work schedules as required. The Commission also held that the agreement was in the public interest, as it provided for appropriate protections for employees while also promoting economic efficiency.

The Commission approved the agreement under section 231 of the Act. The Commission noted that the agreement provided for appropriate protections for employees, including provisions for minimum wages and conditions, dispute resolution mechanisms, and protections against unfair dismissal. The Commission was satisfied that the agreement provided for appropriate balance between the interests of the applicant and its employees. The Commission also noted that the agreement provided for a streamlined dispute resolution process, which would help to promote industrial peace and avoid unnecessary industrial action.

The Commission made an order approving the Kalari Pty Ltd Murray Basin Mineral Sands Project Enterprise Agreement 2012. The order was made under section 231 of the Fair Work Act 2009. The agreement was approved as a registered agreement, which means that it has the force of a registered agreement and is enforceable under the Act. The order also included provisions for the agreement to be published and made available to employees and other interested parties.

Kalari Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established