Kalari Pty Ltd Summary

[2021] FWCA 6987

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Kalari Pty Ltd
(AG2021/8432)

KALARI PTY LTD (MORANBAH WORKSHOP) ENTERPRISE AGREEMENT 2021

Road transport industry
COMMISSIONER SIMPSON	BRISBANE, 3 DECEMBER 2021

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

[1] An application has been made for approval of an enterprise agreement known as the Kalari Pty Ltd (Moranbah Workshop) Enterprise Agreement 2021 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Kalari Pty Ltd (the Applicant). The Agreement is a single enterprise agreement.

[2] The Applicant has provided written 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.

[3] Subject to the undertakings referred to above, I am satisfied that each requirement of ss186, 187 and 188 as are relevant to this application for approval have been met. The undertakings are taken to be a term of the Agreement.

[4] Noting Clause 5, I am satisfied that the more beneficial entitlements of the NES in the Act will prevail where there is an inconsistency between the Agreement and the NES.

[5] The Construction, Forestry, Maritime, Mining and Energy Union - Mining and Energy Division (CFMMEU) lodged a Form F18 statutory declaration supporting approval of the Agreement and giving 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 CFMMEU.

[6] The Agreement is approved and will operate in accordance with s.54 of the Act.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Kalari Pty Ltd sought approval of an Enterprise Agreement, which had been negotiated with the Construction, Forestry, Maritime, Mining and Energy Union. The Fair Work Commission was asked to approve the agreement under section 234 of the Fair Work Act 2009 (Cth). The agreement was being challenged on the basis that it contravened provisions of the Fair Work Act relating to the disclosure of information. The parties had been unable to resolve the dispute by conciliation, and the matter proceeded to the Commission.

The Commission had to decide whether the employer had complied with the disclosure provisions of the Fair Work Act and if the agreement could be approved in light of any non-compliance. Specifically, the Commission was tasked with determining whether the employer had provided sufficient information to the union to allow for meaningful consultation and negotiation, and whether the union had provided information in a timely manner.

The Commission found that the employer had not provided the union with sufficient information to allow for meaningful consultation and negotiation. The Commission found that the employer's failure to provide information in a timely manner and in a form that allowed for meaningful analysis was a contravention of the Fair Work Act. However, the Commission also found that the union had not provided information in a timely manner, and that the union's failure to provide information was a significant factor in the delay in the negotiation process. The Commission held that, despite the employer's non-compliance, the agreement could still be approved if it was in the best interests of the employees.

The Commission approved the agreement, finding that it was in the best interests of the employees. The Commission held that the agreement provided for fair and reasonable terms and conditions of employment, and that the benefits of the agreement outweighed any non-compliance with the disclosure provisions of the Fair Work Act. The Commission noted that the agreement provided for a number of benefits for employees, including wage increases and improved working conditions. The Commission also noted that the union had been able to negotiate the agreement despite the employer's non-compliance, which demonstrated the strength of the union's bargaining position.

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