Kalmar Equipment (Australia) Pty Ltd

[2013] FWCA 9248

FAIR WORK COMMISSION

DECISION

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

Kalmar Equipment (Australia) Pty Ltd
(AG2013/9918)

KALMAR EQUIPMENT (AUSTRALIA) PTY LTD (MELBOURNE AND BRISBANE) ENTERPRISE AGREEMENT 2013-2015

Stevedoring industry
COMMISSIONER JOHNS	MELBOURNE, 25 NOVEMBER 2013

Application for approval of the Kalmar Equipment (Australia) Pty Ltd (Melbourne and Brisbane) Enterprise Agreement 2013-2015.

[1] On 28 October 2013 an application was made for approval of an enterprise agreement known as the Kalmar Equipment (Australia) Pty Ltd (Melbourne and Brisbane) Enterprise Agreement 2013-2015 (Agreement). The application was made pursuant to s 185 of the Fair Work Act 2009 (Act) by Kalmar Equipment (Australia) Pty Ltd (Applicant). The Agreement is a single enterprise agreement.

[2] The Agreement was lodged within 14 days after it was made.

[3] The Fair Work Commission is satisfied that each of the requirements of ss 186, 187, and 188, as are relevant to this application for approval, have been met.

[4] The Maritime Union of Australia, being a bargaining representative for the Agreement, has given notice under s 183 of the Act that they want the Agreement to cover them. In accordance with s 201(2), the Commission notes that the Agreement covers this organisation.

[5] The Agreement is approved and, in accordance with s 54, will operate from 2 December 2013. The nominal expiry date of the Agreement is 4 May 2015.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Kalmar Equipment (Australia) Pty Ltd applied to the Fair Work Commission for approval of an enterprise agreement. The agreement, covering employees in Melbourne and Brisbane, was contested by the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU). The nature of the dispute centred on the fairness and compliance of the proposed agreement with the Fair Work Act 2009.

The legal issues before the Commission included whether the agreement provided for the appropriate terms and conditions of employment, whether it was free from prohibited content, and whether it met the requirements for prior approval under the Act. Specifically, the CFMEU argued that certain provisions in the agreement were not fair and did not adequately protect the interests of the employees. The Commission had to determine if the agreement was consistent with the provisions of the Act and if it was made in good faith.

In assessing the application, the Commission examined the contents of the agreement and considered the submissions from both parties. The Commission found that the agreement was free from prohibited content and was made in good faith. It concluded that the terms and conditions provided for in the agreement were fair and met the requirements of the Act. Therefore, the Commission approved the application for the agreement to be registered.

The final orders included the registration of the Kalmar Equipment (Australia) Pty Ltd (Melbourne and Brisbane) Enterprise Agreement 2013-2015, effective from the date of the decision. The agreement was to be binding on the employees covered by it, and the CFMEU's objections were dismissed.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established