Kelly Green Pty Ltd ATF the Kelly Green Trust T/A Kelly Green & Co

[2020] FWCA 2647

[2020] FWCA 2647

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Kelly Green Pty Ltd ATF the Kelly Green Trust T/A Kelly Green & Co
(AG2020/1017)

KELLY GREEN PTY LTD ENTERPRISE AGREEMENT 2019-2023

Building, metal and civil construction industries
DEPUTY PRESIDENT LAKE	BRISBANE, 20 MAY 2020

Application for approval of the Kelly Green Pty Ltd Enterprise Agreement 2019-2023.

[1] Kelly Green Pty Ltd ATF the Kelly Green Trust T/A Kelly Green & Co (the Applicant) has approved for approval of an enterprise agreement known as the Kelly Green Pty Ltd Enterprise Agreement 2019 – 2023 (the Agreement). The application was made pursuant to s.185 of the Fair Work At 2009 (the Act). The Agreement is a single-enterprise agreement.

[2] On 14 April 2020 Mr Paul Dunbar, an Industrial Officer for the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU), sent email correspondence to the Commission advising it had a material interest in the matter and requesting copies of the Agreement documentation so that it could make submissions in the matter. These were provided by reply email on 14 April 2020.

[3] On 6 May 2020, correspondence was sent to the Applicant identifying a number of concerns with the Agreement. The Applicant provided a detailed response to the concerns raised by the Commission on 7 May 2020.

[4] On 15 May 2020, Mr Dunbar sent an email indicating that the CFMMEU no longer wished to be heard in relation to the Agreement. On the same day, the CFMMEU filed a Form F18 advising the CFMMEU did not want to advise the Commission as to whether it supported approval of the Agreement or whether it agreed with one or more statements in the Applicant’s Form F17 statutory declaration. The Form F18 indicated the CFMMEU did not want to be covered by the Agreement.

[5] I am satisfied the responses provided by the Applicant address the matters of concerns identified by the Fair Work Commission.

[6] The Agreement does not contain a flexibility clause. Pursuant 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.

[7] Concerns were raised by the Fair Work Commission with the Employer in relation to clause 24.4 of the Agreement as prima facie, the clause appeared to provide for unlawful deductions. In accordance with s.326(1) of the Act, I note than an unlawful term has no effect.

[8] I have taken into consideration the material filed in the Commission. Subject to the matters referred to above in paragraphs [6]-[7], I am satisfied that each of the requirements of ss. 186, 187, 188 and 190 as are relevant for this application for approval have been met.

[9] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 27 May 2020. The nominal expiry of the Agreement is 20 May 2024.

DEPUTY PRESIDENT

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