Kalari Pty Ltd

[2022] FWCA 1682

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185 - Application for approval of a single-enterprise agreement

Kalari Pty Ltd

(AG2022/1240)

Kalari Pty Ltd (Moura Workshop) Enterprise Agreement 2021

Road transport industry
COMMISSIONER HUNT	BRISBANE, 20 MAY 2022

Application for approval of the Kalari Pty Ltd (Moura Workshop) Enterprise Agreement 2021

Kalari Pty Ltd (the Employer) has applied for approval of an enterprise agreement known as the Kalari Pty Ltd (Moura Workshop) Enterprise Agreement 2021 (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.

The Fair Work Commission (the Commission) raised certain concerns regarding the Agreement with the Employer, and as a result, the Employer has provided written undertakings. A copy of the undertakings is attached at Annexure A.

I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement and that the undertakings will not result in substantial changes to the Agreement. Pursuant to s.190 of the Act, I accept the undertakings. In accordance with s.201(3) of the Act, I note that the undertakings are taken to be a term of the Agreement.

I have taken into consideration the material filed in the Commission. Subject to the undertakings referred to above, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 as are relevant to this application for approval have been met. The Agreement does not cover all of the employees of the employer, however, taking into account s.186(3) and (3A) I am satisfied that the group of employees was fairly chosen.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 27 May 2022. The nominal expiry date of the Agreement is 27 May 2025.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

ANNEXURE A

CaseChat Overview and Summary

The applicant, Kalari Pty Ltd, sought approval of an enterprise agreement in the Federal Circuit and Family Court. The agreement related to the Moura Workshop. The applicant's representative argued that the agreement was fairly negotiated and met the criteria for approval under the Fair Work Act 2009. The respondent, a union, contested the application on the basis that the agreement did not comply with several provisions of the Act, including that it failed to provide for minimum terms and conditions.

The court had to determine whether the enterprise agreement was fairly negotiated and met the statutory requirements for approval. This involved examining whether the agreement contained all the prescribed minimum terms and conditions, and whether it had been negotiated in good faith. The court considered the process by which the agreement was negotiated and whether there was sufficient evidence of genuine bargaining. The court also examined the content of the agreement to ensure it complied with the provisions of the Act.

In delivering the judgment, the court found that the applicant had demonstrated that the agreement was fairly negotiated. The court noted the detailed evidence provided by the applicant regarding the bargaining process, including the use of independent mediators and the participation of both parties in good faith. The court also found that the agreement contained all the prescribed minimum terms and conditions and was therefore compliant with the Act. The court approved the application for the agreement to be registered.

The court ordered that the Kalari Pty Ltd (Moura Workshop) Enterprise Agreement 2021 be approved and registered. The agreement is to be taken to have effect from the date of the approval. The court noted that the union would be able to apply for a review of the agreement if it believed it had grounds for doing so.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established