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

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Kelly Green Pty Ltd, trading as Kelly Green & Co, applied to the Fair Work Commission for approval of their Enterprise Agreement 2019-2023. The application was contested by the Retail and Fast Food Workers Union, who argued that the proposed agreement did not meet the requirements for fair and reasonable terms as stipulated under the Fair Work Act 2009. The Commission was tasked with determining whether the agreement's provisions were fair and reasonable and if it contained the necessary minimum terms.

The central legal issue before the Commission was whether the Enterprise Agreement 2019-2023 complied with the statutory requirements for fair and reasonable terms. This involved assessing the balance of rights and obligations in the agreement, the adequacy of provisions regarding pay, conditions, and dispute resolution, and ensuring that the agreement did not unfairly disadvantage employees. The Commission also had to consider if the agreement contained all the mandated minimum terms as specified in the Fair Work Act.

In reaching its decision, the Commission examined the specific provisions of the Enterprise Agreement 2019-2023, weighing the interests of both the employer and employees. It assessed whether the proposed terms were fair and reasonable, taking into account the nature of the workplace, the industry standards, and the balance of power between the parties. The Commission found that while the agreement generally met the statutory requirements, some provisions required minor amendments to ensure they were fair and reasonable. The Commission ultimately approved the agreement with the stipulated amendments.

The Commission made orders approving the Enterprise Agreement 2019-2023 with the modifications necessary to meet the statutory requirements for fair and reasonable terms. These amendments were intended to address the specific concerns raised by the union and ensure that the agreement provided a fair balance of rights and obligations for all parties involved. The approved agreement was to be implemented as per its terms, subject to the specified modifications.

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

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established