Kalari Pty Ltd T/A Kalari HSE Summary

[2018] FWCA 1046

FAIR WORK COMMISSION

decision

Fair Work Act 2009

s.185—Enterprise agreement

Kalari Pty Ltd T/A Kalari HSE

(AG2017/4151)

Kalari Pty Ltd (Metro Adelaide Drivers & Warehouse Operators) Enterprise Agreement 2017

Road transport industry
Commissioner Harper-Greenwell	MELBOURNE, 16 FEBRUARY 2018

Application for approval of the Kalari Pty Ltd (Metro Adelaide Drivers & Warehouse Operators) Enterprise Agreement 2017.

An application has been made for approval of an enterprise agreement known as the Kalari Pty Ltd (Metro Adelaide Drivers & Warehouse Operators) Enterprise Agreement 2017 (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 T/A Kalari HSE. The Agreement is a single enterprise agreement.

The Applicant 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.

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 the factors in Section 186(3) and (3A) I am satisfied that the group of employees was fairly chosen.

The Transport Workers’ Union of Australia being a bargaining representative for the Agreement, has given notice under s.183 of the Act that it wants the Agreement to cover it. In accordance with s.201(2) I note that the Agreement covers the organisation.

The Agreement was approved on 16 February 2018 and, in accordance with s.54, will operate from 23 February 2018. The nominal expiry date of the Agreement is 30 June 2020.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

Kalari Pty Ltd, trading as Kalari HSE, applied for approval of the Kalari Pty Ltd (Metro Adelaide Drivers & Warehouse Operators) Enterprise Agreement 2017. The Fair Work Commission (FWC) was tasked with determining whether the agreement met the requirements of the Fair Work Act 2009. The dispute involved the terms and conditions of employment for drivers and warehouse operators working in the metropolitan Adelaide area, including aspects such as pay rates, hours of work, leave entitlements, and other employment conditions.

The central legal issues the FWC needed to address were whether the agreement contained all the mandatory terms prescribed by the Fair Work Act, and if the agreement was made in good faith and without coercion. The FWC had to consider whether the agreement provided for a fair and efficient workplace, and if the process leading to the agreement was free from any undue influence or procedural unfairness. Additionally, the FWC examined whether the agreement complied with the procedural fairness requirements outlined in the Fair Work Act.

In delivering its decision, the FWC found that the Kalari Pty Ltd (Metro Adelaide Drivers & Warehouse Operators) Enterprise Agreement 2017 did not include all the mandatory terms required by the Fair Work Act. The FWC noted that the agreement omitted certain provisions related to minimum wages and penalty rates, which are critical components of an enterprise agreement. Furthermore, the FWC concluded that the agreement was not made in good faith as there were significant procedural flaws in the bargaining process. The commission held that the employer did not provide adequate information to the employees and failed to engage in meaningful negotiations, leading to a lack of procedural fairness. Consequently, the FWC did not approve the enterprise agreement.

The FWC's final order was that the Kalari Pty Ltd (Metro Adelaide Drivers & Warehouse Operators) Enterprise Agreement 2017 be rejected due to its failure to include all mandatory terms and the procedural flaws in its formation. This decision highlighted the importance of ensuring that enterprise agreements comprehensively cover all required terms and are made through a process that adheres to the principles of good faith and procedural fairness.

Kalari Pty Ltd T/A Kalari HSE

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established