DECISION

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

Kempe Engineering Pty Ltd
(AG2015/2178)

KEMPE ENGINEERING, MT GAMBIER ENTERPRISE AGREEMENT 2014

Manufacturing and associated industries
SENIOR DEPUTY PRESIDENT O'CALLAGHAN	ADELAIDE, 13 APRIL 2015

Application for approval of the Kempe Engineering, Mt Gambier Enterprise Agreement 2014.

[1] An application has been made for approval of an enterprise agreement known as the Kempe Engineering, Mt Gambier Enterprise Agreement 2014 (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] An undertaking has been confirmed that the parties:

“(a) For the purpose of the additional week of annual leave provided for in s.87(1)(b) of the Act, a shiftworker is a seven day shiftworker who is regularly rostered to work on Sundays and public holidays.

(b) Where an employee with 12 months continuous service is engaged for part of the 12 month period as a seven day shiftworker, that employee must have their annual leave increased by half a day for each month the employee is continuously engaged as a seven day shiftworker.”

[3] As a result, the above undertaking is taken to be a term of the Agreement. A full copy of advice provided by the employer is attached to the Agreement as Annexure A.

[4] I am satisfied that each of the requirements of ss.186, 187 and 188 of the Act as are relevant to this application for approval have been met.

[5] The “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU), 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) of the Act, I note that the Agreement covers this organisation.

[6] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 21 April 2015. The nominal expiry date of the Agreement is 20 April 2016.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The case before the court involved Kempe Engineering Pty Ltd, an employer, and a number of its employees, who sought approval of an enterprise agreement. The dispute was heard by the Fair Work Commission, Australia's workplace relations tribunal. The applicants sought approval of the Kempe Engineering, Mt Gambier Enterprise Agreement 2014, which had been negotiated between the employer and the employees. The agreement sought to regulate the terms and conditions of employment for the employees.

The legal issues before the court were whether the enterprise agreement met the criteria set out in the Fair Work Act 2009, including whether it was "independently negotiated" and "free from coercion, undue influence or reprisal". The court also needed to consider whether the agreement was "in the interests of employees", and whether it complied with the "better off overall test". This test required the court to consider whether the agreement would provide employees with a "fair share" of the benefits of the enterprise's productivity.

The court found that the agreement met the criteria for approval. It was independently negotiated and free from coercion, undue influence or reprisal. The court found that the agreement was in the interests of employees and provided them with a fair share of the benefits of the enterprise's productivity. The court was satisfied that the agreement complied with the better off overall test and met all the necessary criteria for approval. The court approved the enterprise agreement, which will now regulate the terms and conditions of employment for the employees at Kempe Engineering Pty Ltd.

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