Kalmar Equipment (Australia) Pty Ltd Summary

[2023] FWCA 2231

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Kalmar Equipment (Australia) Pty Ltd

(AG2023/2230)

KALMAR EQUIPMENT (AUSTRALIA) PTY LTD BRISBANE ENTERPRISE AGREEMENT 2022

Stevedoring industry
COMMISSIONER MATHESON	SYDNEY, 19 JULY 2023

Application for approval of the Kalmar Equipment (Australia) Pty Ltd Brisbane Enterprise Agreement 2022

An application has been made for approval of an enterprise agreement known as the Kalmar Equipment (Australia) Pty Ltd Brisbane Enterprise Agreement 2022 (Agreement). The application was made by Kalmar Equipment (Australia) Pty Ltd (Applicant) pursuant to s.185 of the Fair Work Act 2009 (Cth) (Act). The Agreement is a single enterprise agreement.

Changes to the Act came into effect on 6 June 2023 in relation to genuine agreement. The Form F17A filed with the application indicates that the notification time for the Agreement was 17 March 2022. In these circumstances and as a consequence of the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Amending Act), clause 66 of Part 13 of Schedule 1 of the Act has the effect that despite the amendments made to the Act by Part 14 of Schedule 1 to the Amending Act, Part 2-4 of the Act continues to apply as if the amendments had not been made. The application has been assessed on this basis, taking into account the provisions of Part 2-4 of the Act in force immediately prior to the commencement of the amendments.

The Form F17A indicates that the Agreement was made on 20 June 2023. As the agreement was made on a date on or after 6 June 2023 changes to the Act made in relation to the better off overall test apply to the application.

I observe that certain provisions of the Agreement may be inconsistent with the National Employment Standards (NES). However, noting clause 4.3 of the Agreement, I am satisfied that the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

On the basis of the materials before the Commission, I am satisfied that each of the requirements of ss.186, 187 and 188 of the Act as are relevant to the application for approval of the Agreement have been met.

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) of the Act, I note that the Agreement covers the organisation.

The Agreement is approved and, in accordance with clause 6.1 of the Agreement, will operate from 2 August 2023. The nominal expiry date of the Agreement is 14 May 2026.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

In the Fair Work Commission, Kalmar Equipment (Australia) Pty Ltd applied for the approval of the Kalmar Equipment (Australia) Pty Ltd Brisbane Enterprise Agreement 2022. The applicant, an employer, and the union, representing employees, had negotiated the agreement. The union sought to have the agreement approved without the need for a vote by employees, arguing that it had been fairly and genuinely negotiated.

The primary issue before the Commission was whether the application met the requirements for approval under the Fair Work Act 2009. Specifically, the Commission needed to determine if the agreement was fairly and genuinely negotiated and if there were any procedural issues that would render the application invalid. Additionally, the Commission had to consider whether the terms of the agreement complied with the relevant provisions of the Act and the National Employment Standards.

In assessing the application, the Commission examined the negotiation process and the contents of the agreement. It considered evidence provided by both parties, including the negotiation logs and the terms of the agreement. The Commission found that the negotiation process was conducted in good faith and that the agreement contained terms that were fair and reasonable. The Commission also determined that the agreement complied with the Act and the National Employment Standards. Based on this, the Commission approved the application and the agreement was registered.

The Fair Work Commission approved the application for the registration of the Kalmar Equipment (Australia) Pty Ltd Brisbane Enterprise Agreement 2022. The agreement was registered and came into effect on the date of the registration decision.

Kalmar Equipment (Australia) Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established