Kalfresh Pty Ltd, Kalfresh Management Services Pty Ltd, Kallium Management Pty Ltd As Trustee For The Kalium Labour Trust, Kalfresh Harvesting Pty Ltd

[2024] FWCA 2740

[2024] FWCA 2740

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Kalfresh Pty Ltd, Kalfresh Management Services Pty Ltd, Kallium Management Pty Ltd As Trustee For The Kalium Labour Trust, Kalfresh Harvesting Pty Ltd

(AG2024/2279)

KALFRESH GROUP ENTERPRISE AGREEMENT 2023

Agricultural industry
DEPUTY PRESIDENT BELL	MELBOURNE, 26 JULY 2024

Application for approval of the Kalfresh Group Enterprise Agreement 2023

1. An application has been made for approval of an enterprise agreement known as the Kalfresh Group Enterprise Agreement 2023 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act) by the employer Kalfresh Pty Ltd, Kalfresh Management Services Pty Ltd, Kallium Management Pty Ltd As Trustee For The Kalium Labour Trust, Kalfresh Harvesting Pty Ltd. The Agreement is a single enterprise agreement.

1. The notification time for the Agreement under s.173(2) was after 6 June 2023 and the Agreement was made on 7 June 2024. Accordingly, both the genuine agreement and the better off overall test requirements are those applying on and from 6 June 2023.[1]

1. I note the application for approval was the second application for approval of an enterprise agreement made by the employer. Prior to the current application, the employer and its employees had made an earlier agreement (‘the first agreement’). That application was allocated to me before it was withdrawn by the employer. For the first agreement, there was a notification time of 29 November 2023, which was established by the issuing of the ‘notice of employee representational rights ‘(NOERR) on that date. For the current application before me, the employer did not issue a fresh notice of employee representational rights (NOERR).

1. Once the application for approval of the first agreement was made, bargaining was concluded.[2] The consequence is that in order to comply with the requirements of s 173 for the current agreement, a fresh NOERR ought to have been issued.

1. Section 188(1) of the Act requires the Commission to take into account statement of principles made under s 188B in determining whether it is satisfied that an enterprise agreement has been genuinely agreed to by the employees covered by the Agreement. The statement of principles was made under s 188B by the President of the Commission on 12 May 2023 (Statement of Principles on Genuine Agreement).

1. Paragraphs 1 - 3 of the Statement of Principles on Genuine Agreement address informing employees of bargaining for a proposed enterprise agreement and informing employees of their right to be represented by a bargaining representative, including the NOERR.

1. The circumstances in this matter involved only a slight temporal gap between the first agreement and when the employer notified employees that renewed discussions were to commence. Moreover, in a practical sense, issuing a fresh NOERR could have involved little more than retrieving the first NOERR from employees and then handing it back to them in materially identical form.

1. Notwithstanding my satisfaction that the requirements of s 188(1) are met, s 188(4) provides that I “cannot” be satisfied that the Agreement has been genuinely agreed unless I am satisfied that sections 173 and 174 (which deal with giving the NERR) were complied with. I am not satisfied that those sections were complied with, because a fresh NOERR was not issued.

1. However, s 188(5) provides that certain “minor procedural or technical errors” might be disregarded if the Commission is satisfied that the employees were not likely to have been disadvantaged by the errors. Section 185(5) applies to the requirements of ss 173 or 174.

1. I am satisfied that reliance on the NOERR issued on 29 November 2023 was a minor procedural error in circumstances when a fresh NOERR ought to have been issued. For the reasons I have set out above, I am also satisfied that no employee was likely to have been disadvantaged by the error. The requirements of s 188(5) are met.[3]

1. 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. Pursuant to s.201(3), the undertakings are taken to be a term of the Agreement.

1. Subject to the undertakings referred to above, I am satisfied that each of the requirements of ss.186, 187, 188, 190, 193 and 193A as are relevant to this application for approval have been met.

1. The Agreement was approved on 26 July 2024 and, in accordance with s.54 of the Act, will operate from 2 August 2024. The nominal expiry date of the Agreement is 25 July 2028.

DEPUTY PRESIDENT

Annexure A

[1] The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) made a number of changes to enterprise agreement approval processes in Part 2-4 of the Fair Work Act. Those changes broadly commenced operation on 6 June 2023, subject to various transitional arrangements which are not applicable to the present application.

[2] Uniline Australia Limited [2016] FWCFB 4969, 263 IR 255 at [115]; Glenn Ferguson v Path Transit Pty Ltd[2020] FWCFB 6615 at [20].

[3] See, too, Action Industrial Catering Pty Ltd [2021] FWCA 3723 (Johns C) at [35] – [39].

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