KCS Warehousing & Logistics Solutions Pty Ltd Trading AS Kyabram Cold Storage

[2025] FWCA 912

[2025] FWCA 912

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

KCS Warehousing & Logistics Solutions Pty Ltd Trading AS Kyabram Cold Storage

(AG2025/471)

KCS WAREHOUSING AND LOGISTICS SOLUTIONS PTY LTD AND UNITED WORKERS UNION ENTERPRISE AGREEMENT 2025

Storage services
COMMISSIONER FOX	MELBOURNE, 14 MARCH 2025

Application for approval of the KCS Warehousing and Logistics Solutions Pty Ltd and United Workers Union Enterprise Agreement 2025.

1. An application has been made for approval of an enterprise agreement known as the KCS Warehousing and Logistics Solutions Pty Ltd and United Workers Union Enterprise Agreement 2025 (the Agreement). The Application was made pursuant to s.185 of the Fair Work Act 2009 (Cth) (the Act). It has been made by KCS Warehousing & Logistics Solutions Pty Ltd T/A Kyabram Cold Storage (the Employer). The Agreement is a single enterprise agreement.

1. The Notice of Employee Representational Rights which was provided to employees is one which pre-dates the 6 June 2023 reforms. Per s.188(5) of the Act, I am satisfied that the Agreement would have been genuinely agreed to but for the minor technical error made in relation to the requirements set out in s.174(1A) of the Act. I am satisfied that the employees to be covered by the Agreement were not likely to have been disadvantaged by the error and that the Agreement has been genuinely agreed within the meaning of s.188(5) of the Act.

1. The Employer has provided written undertakings. A copy of the undertakings is attached at 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. The undertakings are taken to be a term of the Agreement.

1. Subject to the undertakings referred to above, I am satisfied that each requirement of ss.186, 187, 188 and 190 as are relevant to this application for approval have been met. For the purposes of the better off overall test, I have had regard to each of the matters in s.193A(2)-(7).

1. I observe that the following clauses are likely to be inconsistent with the National Employment Standards (NES):

·Personal/ Carer’s Leave: Clause 33.1.1 provides that for each year of service with the employer, an employee is entitled to 10 days of paid personal/carer's, family and domestic violence leave. It was unclear if this is 10 days in total or 10 days for each. This may be inconsistent with ss.96(1) and 106A(1) of the Act.

·Personal/ Carer’s Leave – Notification Requirements: Clause 33.6.1 of the Agreement provides the employee must, where they are in a position to do so, take all reasonable steps to inform the employer of their inability to attend for duty and as far as practicable state the nature of the injury or illness and the estimated duration of the absence, as near as possible to, but no later than one hour after normal commencement time. However, section 107(2)(a) of the Act provides that notice must be given to the employer as soon as practicable (which may be a time after the leave has started).

·Substitution of Public Holidays: Clause 37.2.6.1 of the Agreement provides that an employer and his or her employees may agree to substitute another day for any prescribed in this clause and that for this purpose, the consent of the majority of affected employees shall constitute agreement. This clause is inconsistent with s.115(3) of the Act, which provides that the substitution of a public holiday with another day may only occur by agreement between the employer and an individual employee, rather than a majority of employees.

1. Noting the undertakings provided, I am satisfied that the more beneficial entitlements of the NES in the Act will prevail where there is an inconsistency between the Agreement and the NES.

1. The United Workers’ Union being a bargaining representative for the Agreement supports the approval of the Agreement and 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.

1. The Agreement is approved, and in accordance with s.54 of the Act, will operate from 21 March 2025. The nominal expiry date of the Agreement is 31 December 2027.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

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Annexure A