Kalari Pty Ltd

[2022] FWCA 1345

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Kalari Pty Ltd

(AG2022/975)

Kalari Pty Ltd (Ceduna Mineral Sands) Enterprise Agreement 2021

Road transport industry
DEPUTY PRESIDENT MILLHOUSE	MELBOURNE, 3 MAY 2022

Application for the approval of Kalari Pty Ltd (Ceduna Mineral Sands) Enterprise Agreement 2021

An application has been made for approval of an enterprise agreement known as the Kalari Pty Ltd (Ceduna Mineral Sands) Enterprise Agreement 2021 (Agreement). The application was made pursuant to s 185 of the Fair Work Act 2009 (Cth) (Act). It has been made by Kalari Pty Ltd (Employer). The Agreement is a single enterprise agreement.

The Employer has provided written undertakings. A copy of the undertakings is attached in 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. The undertakings are taken to be a term of the Agreement.

Subject to the undertakings referred to above, and on the basis of the material before the Commission in support of the application, 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.

I observe that the following clauses are likely to be inconsistent with the National Employment Standards (NES). However, noting clause 3 of the Agreement, I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES:

Clause 27d.(d) which deals with the deduction of monies due to employees on termination; and
Clause 50 regarding the payment of severance pay where an employee rejects an offer of alternative employment.

The Agreement is approved and, in accordance with s 54 of the Act, will operate from 10 May 2022. The nominal expiry date of the Agreement is 30 June 2024.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

Kalari Pty Ltd (Ceduna Mineral Sands) applied to the Fair Work Commission for approval of an enterprise agreement under the Fair Work Act 2009. The dispute involved the terms of the proposed agreement and its compliance with the relevant statutory requirements. The Fair Work Commission was the court tasked with reviewing and approving the agreement.

The primary legal issues before the Commission were whether the agreement met the criteria for approval under the Fair Work Act, specifically if it contained the mandated minimum terms and conditions, and whether it was free from any unlawful content. The Commission also had to consider if the agreement had been fairly negotiated and if it provided for genuine collective bargaining.

The Commission found that the proposed agreement met the statutory requirements for approval. It contained all the necessary minimum terms and conditions and was free from any unlawful content. The evidence presented demonstrated that the agreement had been fairly negotiated and represented genuine collective bargaining between the employer and the employees. Consequently, the Commission approved the application for the agreement's registration.

The Fair Work Commission approved the application for the registration of the Kalari Pty Ltd (Ceduna Mineral Sands) Enterprise Agreement 2021, determining that it complied with all statutory requirements and represented fair and genuine collective bargaining.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established