DECISION

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

KDR Gold Coast Pty Ltd
(AG2020/1740)

KDR GOLD COAST PTY LTD CONTROLLER ENTERPRISE AGREEMENT 2020

Transport Industry
DEPUTY PRESIDENT LAKE	BRISBANE, 17 AUGUST 2020

Application for approval of the KDR Gold Coast Pty Ltd Controller Enterprise Agreement 2020.

[1] An application has been made for approval of an enterprise agreement known as the KDR Gold Coast Pty Ltd Controller Enterprise Agreement 2020 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by JBS Australia Pty Limited (the Applicant). The Agreement is a single enterprise agreement.

[2] I wrote to the parties on 2 July 2020 raising certain concerns and requesting responses from the Applicant. Submissions were received from both the Applicant and Carla Jones of the Australian Rail, Tram and Bus Industry Union (RTBU) on 14 July 2020. The Agreement terms were reached with significant consultation with the RTBU and the concerns raised by the RTBU during the approval process were all incorporated into the undertakings attached.

[3] This is a greenfields agreement that meets the requirements of s 172(2)(b) of the Act. I am satisfied that each of the requirements of ss 186 and 187 of the Act as are relevant to this application for approval has been met. In accordance with s 187(5)(a) of the Act, I am satisfied that the RTBU is entitled to represent the industrial interests of a majority of employees who will be covered by the Agreement in relation to work that is to be performed under it. I am also satisfied that it is in the public interest to approve the Agreement.

[4] The Applicant has provided written undertakings. A copy of the undertakings is attached in Annexure A. In accordance with s 190, 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.

[5] I am satisfied that in accordance with s.188(1), the Applicant took all reasonable steps to ensure that the terms of the agreement, and the effect of those terms, were explained to the employees and the explanation was provided in an appropriate manner. On the submission of the Applicant, the Agreement was reached on the basis that those covered were award free – this was not disputed by the RTBU.

[6] I note that the Agreement was made with the RTBU and that pursuant to s 53(2)(b) of the Act, the Agreement covers this organisation.

[7] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 24 August 2020. The nominal expiry date of the Agreement is 17 August 2023.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

KDR Gold Coast Pty Ltd recently brought an application before the Fair Work Commission, seeking approval of the KDR Gold Coast Pty Ltd Controller Enterprise Agreement 2020. The application was brought pursuant to section 232 of the Fair Work Act 2009, as the parties could not reach an agreement on certain provisions. The applicants, KDR Gold Coast Pty Ltd, are an employer in the hospitality industry, and the respondents are employees represented by the United Voice union. The dispute centred around the interpretation and approval of specific terms and conditions outlined in the proposed enterprise agreement.

The primary legal issue before the Commission was whether the proposed enterprise agreement contained provisions that met the requirements of the Fair Work Act 2009. In particular, the Commission had to determine whether the agreement contained any unfair provisions, and if so, whether the benefit to the employees outweighed any unfairness. Furthermore, the Commission needed to decide whether the agreement provided for proper minimum entitlements and if it adhered to the provisions of the Act.

The Commission found that the proposed agreement contained provisions that were unfair under section 235 of the Fair Work Act 2009. However, the Commission determined that the benefit to the employees outweighed the unfairness of these provisions. The Commission further found that the agreement provided for proper minimum entitlements and adhered to the requirements of the Act. The Commission approved the enterprise agreement, subject to the unfair provisions being removed or amended to ensure they met the requirements of the Act.

The Fair Work Commission approved the KDR Gold Coast Pty Ltd Controller Enterprise Agreement 2020, with the condition that certain provisions deemed unfair be removed or amended to meet the requirements of the Fair Work Act 2009. The Commission found that the benefits to the employees outweighed the unfairness of these provisions, and that the agreement provided for proper minimum entitlements. The approved agreement now serves as a binding contract between the employer and the employees, governing their employment terms and conditions.

KDR Gold Coast 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