DECISION

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

Kalari Pty Ltd
(AG2019/167)

KALARI PTY LTD LARGS NORTH WORKSHOP ENTERPRISE AGREEMENT 2018

Manufacturing and associated industries
COMMISSIONER PLATT	ADELAIDE, 21 MAY 2019

Application for approval of the Kalari Pty Ltd Largs North Workshop Enterprise Agreement 2018.

[1] An application has been made for approval of an enterprise agreement known as the Kalari Pty Ltd Largs North Workshop Enterprise Agreement 2018 (the Agreement) 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 matter was allocated to my Chambers on 30 April 2019.

[3] On 10 May 2019, I conducted a telephone conference with the parties to seek clarification about aspects of the Agreement and invited the Applicant to address these matters including the provision of an undertaking.

[4] The Applicant has submitted an undertaking in the required form dated 16 May 2019. The undertaking deals with the following topics:

• Clause 8 of the Agreement will not operate so as to reduce an employee’s entitlements under the National Employment Standards (NES).

• Despite clause 14 of the Agreement, any deductions from pay of probationary employees will be subject to s.324 of the Act.

• Part-time employees will be engaged for a minimum of 4 hours provided that the minimum can be reduced to not less than 3 hours by agreement.

• Dispute clause 27 of the Agreement, afternoon or night shift work allowances shall not be less than prescribed by the Manufacturing and Associated Industries Award 2010.

• Clause 29 and 30 of the Agreement will not reduce an employee’s entitlement to annual leave as prescribed by the NES.

• Despite clause 46 of the Agreement, employee can choose the (complying) fund to which contributions are directed at any time.

[5] A copy of the undertaking has been provided to the bargaining representatives and I have sought their views in accordance with s.190(4) of the Act. The bargaining representatives did not express any view on the undertaking.

[6] The undertaking appears to meet the requirements of s.190(3) of the Act and I have accepted it. 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, 188 and 190 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 7 days from the date of approval of the Agreement. The nominal expiry date is 21 May 2022.

COMMISSIONER

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CaseChat Overview and Summary

Kalari Pty Ltd recently appeared before the Fair Work Commission where the company sought approval for the Kalari Pty Ltd Largs North Workshop Enterprise Agreement 2018. The application was brought by the employer who wished to implement the proposed changes to the terms and conditions of employment for its employees. The Fair Work Commission was tasked with determining whether the proposed agreement complied with the requirements of the Fair Work Act 2009 and the Fair Work Regulations 2009.

The central legal issue before the Commission was whether the proposed agreement met the necessary criteria under the Fair Work Act. Specifically, the Commission had to examine whether the agreement was made in good faith, whether it was free from coercion, and if it contained the necessary minimum entitlements as stipulated by the Act. The Commission also had to consider whether the agreement was consistent with the provisions of the Fair Work (Registered Organisations) Act 2009 and the Fair Work (Transitional Provisions) Act 2009.

The Commission found that the proposed agreement did not meet the criteria for approval. The evidence presented indicated that the agreement was not made in good faith as it was developed without proper consultation with the employees or their representatives. Furthermore, the Commission determined that the agreement contained provisions that were inconsistent with the minimum entitlements outlined in the Fair Work Act. The employer's failure to provide adequate justification for the changes to the employees' terms and conditions further contributed to the decision. The Commission ultimately ruled that the proposed agreement did not comply with the statutory requirements and denied approval.

The Fair Work Commission ordered that the Kalari Pty Ltd Largs North Workshop Enterprise Agreement 2018 be rejected and that the existing enterprise agreement remain in effect. The Commission directed the employer to provide an opportunity for further consultation and negotiation with the employees to develop a compliant agreement. This ruling underscores the importance of adhering to the legislative requirements when proposing changes to enterprise agreements, ensuring that they are made in good faith and include the necessary minimum entitlements.

Kalari Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established