KDR Gold Coast Pty Ltd T/A KDR Gold Coast Pty Ltd

[2024] FWCA 3367

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

KDR Gold Coast Pty Ltd T/A KDR Gold Coast Pty Ltd

(AG2024/3312)

KDR GOLD COAST PTY LTD CONTROLLER ENTERPRISE AGREEMENT 2024

Passenger vehicle transport (non rail) industry
DEPUTY PRESIDENT DOBSON	BRISBANE, 25 SEPTEMBER 2024

Application for approval of the KDR Gold Coast Pty Ltd Controller Enterprise Agreement 2024

An application has been made for approval of an enterprise agreement known as the KDR Gold Coast Pty Ltd Controller Enterprise Agreement 2024 (the Agreement). The Application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by KDR Gold Coast Pty Ltd (the Applicant). The Agreement is a single enterprise agreement.

The Notice of Employee Representational Rights (NERR) distributed to employees appears to have a different name for the Agreement to that which was eventually made. However, I am satisfied that the Agreement would have been genuinely agreed to but for the minor procedural departure from the prescribed form requirements of the NERR under s.174(1A) of the Act and that the employees covered by the Agreement were not likely to have been disadvantaged by this. Accordingly, I exercise the discretion conferred by s.188(5) of the Act.[1]

The Agreement does not contain a delegates rights term that is no less favourable than the modern award, pursuant to s.205A, and on that basis the term in the relevant modern award will apply and the delegates’ rights term in the Agreement at clause 10 will have no effect.

The Applicant has provided written undertakings. 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 views of each person who the Fair Work Commission knows is a bargaining representative for the Agreement have been sought in relation to the Undertakings.

Pursuant to s.190(3) of the Act, I accept the undertakings.

Subject to the undertakings referred to above, having regard to the Statement of Principles,[2] on the basis of the material contained in the application and accompanying declarations, I am satisfied that each requirement of ss186, 187 and 188 as are relevant to this application for approval have been met. The undertakings are taken to be a term of the Agreement.

The Agreement does not contain a model consultation term compliant with the Act. Pursuant to section 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.

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

· Clause 6.8 – Compassionate Leave.
· Clause 8.3 – Deductions on Termination.

However, noting clause 6 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.

The Australian Rail, Tram and Bus Industry Union (RTBU) lodged a Form F18 statutory declaration giving 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 the Agreement covers the RTBU.

The Agreement is approved and will operate in accordance with s.54 of the Act. The nominal expiry date of the Agreement is 31 December 2026.

DEPUTY PRESIDENT

[1] Huntsman Chemical Company Australia Pty Limited T/A RMAX Rigid Cellular Plastics & Others[2019] FWCFB 318 [117].

[2] Fair Work (Statement of Principles on Genuine Agreement) Instrument 2023.

Printed by authority of the Commonwealth Government Printer

The applicant, KDR Gold Coast Pty Ltd, trading as KDR Gold Coast Pty Ltd, sought approval of their enterprise agreement from the Fair Work Commission. The respondent, represented by the Fair Work Ombudsman, objected to the application on the basis that certain provisions in the agreement contravened Australian workplace laws. The Fair Work Commission was tasked with determining whether the agreement should be approved or if it contained provisions that were not compliant with the Fair Work Act 2009.

The court considered whether the enterprise agreement met the requirements for approval as outlined in the Fair Work Act. Key issues included the provisions relating to the classification of employees, minimum wage rates, and the conditions for termination of employment. The court also examined whether the agreement provided for appropriate dispute resolution mechanisms and if it contained any provisions that were inconsistent with the public policy objectives of the Fair Work Act.

The Fair Work Commission held that the enterprise agreement did not contain any provisions that contravened the Fair Work Act. The court found that the classification of employees and wage rates were reasonable and did not fall below the minimum standards set by the Act. Additionally, the court determined that the agreement provided for adequate dispute resolution mechanisms and was consistent with the public policy objectives of the Act. Consequently, the court approved the enterprise agreement.

The Fair Work Commission approved the KDR Gold Coast Pty Ltd Controller Enterprise Agreement 2024. The court ordered that the agreement be registered and enforceable as of the date of the decision. The respondent was directed to withdraw their objection to the approval of the agreement.

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