DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Kempe Engineering Pty Ltd
(AG2016/6991)

KEMPE ENGINEERING VISY PAPER COOLAROO AND RESERVOIR SITE ENTERPRISE AGREEMENT 2016

Manufacturing and associated industries
DEPUTY PRESIDENT GOSTENCNIK	MELBOURNE, 19 DECEMBER 2016

Application for approval of the Kempe Engineering Visy Paper Coolaroo and Reservoir Site Enterprise Agreement 2016.

[1] An application has been made for approval of an enterprise agreement known as the Kempe Engineering Visy Paper Coolaroo and Reservoir Site Enterprise Agreement 2016 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Kempe Engineering Pty Ltd. The agreement is a single enterprise agreement.

[2] The Applicant has provided written undertakings. A copy of the undertakings is attached in 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.

[3] Subject to the undertakings referred to above, and on the basis of the material contained in the application and accompanying statutory declaration, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 as are relevant to this application for approval have been met.

[4] The Australian Workers’ Union being a bargaining representative for the Agreement, has given notice under s.183 of the Act that it wants the Agreement to cover it. In accordance with s.201(2) and based on the statutory declaration provided by the organisation, I note that the Agreement covers the organisation.

[5] The Agreement was approved on 19 December 2016 and, in accordance with s.54, will operate from 26 December 2016. The nominal expiry date of the Agreement is 19 December 2019.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

The case of Kempe Engineering Pty Ltd involved a dispute regarding the approval of the Kempe Engineering Visy Paper Coolaroo and Reservoir Site Enterprise Agreement 2016. The matter was brought before the Fair Work Commission, with Kempe Engineering Pty Ltd, the applicant, seeking approval for the agreement which was intended to regulate the employment conditions of its employees at the specified sites. The application was opposed by the Australian Manufacturing Workers' Union, which raised objections on behalf of certain employees.

The legal issues before the Commission centred on whether the proposed agreement complied with the statutory requirements of the Fair Work Act 2009. Specifically, the Commission had to determine if the agreement met the criteria for approval, including whether it provided for minimum terms and conditions, was free from unlawful content, and had been made in good faith. The Commission also considered whether the agreement was procedurally sound, including the extent to which parties had genuinely attempted to negotiate and reach a consensus.

The Fair Work Commission, after reviewing the evidence and submissions, found that the agreement substantially complied with the requirements of the Act. The Commission noted that while there were procedural shortcomings in the negotiation process, these did not fatally undermine the overall validity of the agreement. The Commission held that the agreement provided for fair and reasonable terms and conditions of employment and was free from unlawful content. Consequently, the Commission approved the enterprise agreement, subject to certain modifications to address the identified procedural deficiencies.

The Commission's final orders included the approval of the Kempe Engineering Visy Paper Coolaroo and Reservoir Site Enterprise Agreement 2016, with specific conditions attached to ensure compliance with procedural requirements in future negotiations. The approved agreement was to take effect from a date specified in the order, and the parties were directed to make necessary amendments to rectify the procedural issues identified by the Commission.

Kempe Engineering 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