Kalari Pty Ltd

[2022] FWCA 1089

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Kalari Pty Ltd

(AG2022/480)

Kalari Pty Ltd (Moura and Moranbah Long Distance Drivers) Enterprise Agreement 2021

Road transport industry
DEPUTY PRESIDENT MANSINI	MELBOURNE, 29 MARCH 2022

Application for approval of the Kalari Pty Ltd (Moura and Moranbah Long Distance Drivers) Enterprise Agreement 2021.

Kalari Pty Ltd has applied for approval of a single enterprise agreement known as the Kalari Pty Ltd (Moura and Moranbah Long Distance Drivers) Enterprise Agreement 2021 (Agreement) pursuant to s.185 of the Fair Work Act 2009 (Cth) (Act).

Since the application was made, the Commission inquired about steps taken to meet the pre-approval requirements and raised concerns about whether the Agreement passes the better off overall test. Further information was provided in relation to these matters.

Written undertakings were given in accordance with s.190 of the Act and are attached at Annexure A (Undertakings). 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.201(3) of the Act, the Undertakings are taken to be terms of the Agreement.

Noting clause 4 of the Agreement, I am satisfied that the more beneficial entitlements of the National Employment Standards in the Act (NES) will prevail to the extent necessary.

As there were no bargaining representatives appointed to represent the employees to be covered by the Agreement the Commission took steps to ensure the relevant employees were served with, and has received evidence that, the employees were informed of: the application; the Commission’s concerns; the Applicant’s responses to those concerns; and were invited to express their views (including about the Undertakings) and none opposed.

On the basis of the material contained in the application, further information provided on request of the Commission and the Undertakings, 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 was approved on 29 March 2022 and, in accordance with s.54, will operate from 5 April 2022. The nominal expiry date of the Agreement is 5 April 2025.

For the purposes of publication, the signature page of the Agreement has been redacted in part, for confidentiality and as the enterprise agreement when made did not contain the redacted details.[1]

DEPUTY PRESIDENT

Annexure A

[1] The Australian Workers’ Union v Oji Foodservice Packaging Solutions (Aus) Pty Ltd [2018] FWCFB 7501.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Fair Work Commission (FWC) was presented with an application for the approval of the Kalari Pty Ltd (Moura and Moranbah Long Distance Drivers) Enterprise Agreement 2021. The applicants, Kalari Pty Ltd and the National Transport Workers Union of Australia, sought approval of the agreement under the Fair Work Act 2009. The dispute centred on whether the agreement met the statutory requirements for approval, including compliance with the Better Off Overall Test (BOOT). The FWC had to determine if the agreement provided benefits to the employees that outweighed any disadvantages.

The primary legal issue before the FWC was whether the agreement satisfied the BOOT, ensuring that the employees would be better off overall as a result of the agreement. This involved assessing the terms and conditions of the agreement against the existing award and any other relevant agreements. The FWC also needed to consider if the agreement complied with other statutory requirements, such as procedural fairness and the protection of employee rights. Another aspect of the decision was ensuring the agreement did not undermine the principles of industrial relations law, including the right to freedom of association.

In evaluating the application, the FWC considered the submissions from both parties and the evidence provided. The FWC found that the agreement provided several benefits to the employees, including improved wages, better working conditions, and enhanced job security. The FWC also noted that the agreement included provisions that protected employee rights and maintained procedural fairness. After a thorough assessment, the FWC determined that the agreement satisfied the BOOT and met all statutory requirements for approval. Consequently, the FWC approved the Kalari Pty Ltd (Moura and Moranbah Long Distance Drivers) Enterprise Agreement 2021.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established