DECISION

Fair Work Act 2009
s.210—Enterprise agreement

Kalmar Equipment (Australia) Pty Ltd
(AG2019/1173)

KALMAR EQUIPMENT (AUSTRALIA) PTY LTD AND MARITIME UNION OF AUSTRALIA (MUA DIVISION OF THE CFMMEU) PORT BOTANY FACILITY ENTERPRISE AGREEMENT 2018

Stevedoring industry
DEPUTY PRESIDENT MILLHOUSE	MELBOURNE, 29 JULY 2019

Application for variation of the Kalmar Equipment (Australia) Pty Ltd and Maritime Union of Australia (MUA division of the CFMMEU) Port Botany Facility Enterprise Agreement 2018.

[1] An application has been made for approval of a variation to the Kalmar Equipment (Australia) Pty Ltd and Maritime Union of Australia (MUA division of the CFMMEU) Port Botany Facility Enterprise Agreement 2018 (the Agreement). The application was made by Kalmar Equipment (Australia) Pty Ltd (the Applicant) pursuant to section 210 of the Fair Work Act 2009 (the Act).

[2] The application seeks to vary various clauses of the Agreement. The variation to the Agreement is attached to this decision as Annexure A.

[3] I am satisfied that each of the requirements of ss.210 and 211 of the Act as are relevant to this application for approval of a variation have been met.

[4] The variation was not lodged within 14 days after it was made but rather, was lodged on the 15^th day. The Applicant provided an explanation for the delay. Having regard to those matters and in accordance with s.210(3)(b) of the Act, I consider it fair to extend the time for making the application to the date it was actually made.

[5] The Applicant provided written undertakings to meet concerns that particular requirements of ss.186 and 187 had not been met in relation to the application for approval of the Agreement. The undertakings were accepted and the Agreement was approved on 8 March 2019. Those undertakings form part of the Agreement as varied.

[6] The variation is approved and the consolidated version of the Agreement, as varied, is attached to this decision.

[7] In accordance with s.216 of the Act, the variation operates from 29 July 2019.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The case involved Kalmar Equipment (Australia) Pty Ltd, which sought a variation to the Enterprise Agreement with the Maritime Union of Australia (MUA division of the CFMMEU) concerning the Port Botany Facility. The application was brought before the Fair Work Commission, which was tasked with determining whether the proposed changes to the agreement were in line with the relevant provisions of the Fair Work Act 2009. The primary issue was whether the changes proposed by Kalmar Equipment (Australia) Pty Ltd were reasonable and met the criteria for a variation as set out in the Fair Work Act. Specifically, the court needed to consider whether the changes were necessary to accommodate genuine operational requirements and whether they were fair and reasonable in all the circumstances.

The Fair Work Commission considered the evidence and submissions from both parties. It assessed whether the proposed changes would genuinely benefit the business operations of Kalmar Equipment (Australia) Pty Ltd and whether these benefits outweighed any potential disadvantages to the employees. The Commission also examined if the changes were necessary to ensure the company's operational efficiency and competitiveness. After thorough deliberation, the Fair Work Commission concluded that the proposed changes were reasonable and necessary for the operational requirements of the company. Consequently, the application for variation was approved.

The Fair Work Commission's decision was that the variation to the Enterprise Agreement was permissible under the Fair Work Act. The changes were deemed necessary for the operational requirements of Kalmar Equipment (Australia) Pty Ltd and were found to be fair and reasonable. The court found that the proposed changes would not adversely affect the employees to an unjustifiable degree and would indeed benefit the overall business operations. The Commission's final orders included the approval of the variation to the Enterprise Agreement, allowing Kalmar Equipment (Australia) Pty Ltd to implement the changes as proposed.

Kalmar Equipment (Australia) 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