Kalmar Equipment (Australia) Pty Ltd

[2019] FWCA 3720

[2019] FWCA 3720

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Kalmar Equipment (Australia) Pty Ltd
(AG2019/820)

KALMAR EQUIPMENT (AUSTRALIA) PTY LTD BRISBANE ENTERPRISE AGREEMENT 2018

Stevedoring industry
COMMISSIONER YILMAZ	MELBOURNE, 29 MAY 2019

Application for approval of the Kalmar Equipment (Australia) Pty Ltd Brisbane Enterprise Agreement 2018.

[1] An application has been made for approval of an enterprise agreement known as the Kalmar Equipment (Australia) Pty Ltd Brisbane Enterprise Agreement 2018 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Kalmar Equipment (Australia) Pty Ltd. The Agreement is a single enterprise agreement.

[2] I am satisfied that each of the requirements of ss.186, 187 and 188 are relevant to this application for approval and 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.

[3] The application was not lodged within 14 days after the agreement was made. Pursuant to s.185(3)(b), in all the circumstances I consider it fair to extend the time for making the application to the date it was actually made.

[4] The employer notified employees of the time and place of the vote via email on 7 November 2018, which is less than seven clear days from when the vote commenced on 13 November 2018. The Applicant provided my Chambers with a copy of the email sent to employees which stated that the vote would be run by the union delegates. The email did not further explain what the method of the vote would be. Therefore, the employer has not complied with s.180(3) of the Act. The Applicant submits that its failure to strictly follow the notification requirements in s.180(3) is a minor procedural error for the purposes of s.188(2)(a) and did not disadvantage employees. Having regard to all the circumstances and the fact that nine out of 15 employees attended the vote and all nine voted to approve the agreement, I am satisfied that the agreement would have been genuinely agreed to but for the minor procedural error made in relation to the requirement in s.180(3). I am also satisfied that the employees covered by the agreement were not likely to have been disadvantaged by the error.

[5] I observe that certain provisions of the Agreement are likely to be inconsistent with the National Employment Standards (NES). However, noting clause 3.1.1 of the Agreement, I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

[6] Pursuant to s.205(2) of the Act, the model consultation term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.

[7] Pursuant to s.202(4) of the Act, the model flexibility term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.

[8] The Construction, Forestry, Maritime, Mining and Energy Union 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.

[9] The Agreement is approved and, in accordance with s.54, will operate from 12 June 2019. The nominal expiry date of the Agreement is 14 May 2022.

COMMISSIONER

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