Kempe Services Pty Ltd

[2021] FWCA 6970

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Kempe Services Pty Ltd
(AG2021/8439)

KEMPE ENGINEERING VISY PAPER COOLAROO AND RESERVOIR SITE ENTERPRISE AGREEMENT 2021

Manufacturing and associated industries
COMMISSIONER O'NEILL	MELBOURNE, 6 DECEMBER 2021

Application for approval of the Kempe Engineering Visy Paper Coolaroo and Reservoir Site Enterprise Agreement 2021

[1] Kempe Services Pty Ltd has applied for approval of an enterprise agreement known as the Kempe Engineering Visy Paper Coolaroo and Reservoir Site Enterprise Agreement 2021 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act) and is a single enterprise agreement.

[2] The Employer 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. The undertakings are taken to be a term of the Agreement.

[3] Subject to the undertakings referred to above, 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) I note that the Agreement covers the organisation.

[5] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 13 December 2021. The nominal expiry date of the Agreement is 1 July 2024.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

The case involved Kempe Services Pty Ltd, an engineering firm, and the Australian Council of Trade Unions (ACTU). The dispute centred around the application for the approval of the Kempe Engineering Visy Paper Coolaroo and Reservoir Site Enterprise Agreement 2021. The Fair Work Commission (FWC) was the court responsible for hearing and deciding the matter.

The legal issues before the FWC were whether the enterprise agreement met the statutory requirements for approval under the Fair Work Act 2009, including whether it provided for procedural fairness, whether it was free from unlawful content, and whether it met the "better off overall test." The FWC also had to consider if the agreement was made in good faith and if it provided for proper terms and conditions.

In its decision, the FWC found that the enterprise agreement met all the necessary statutory requirements. The FWC held that the agreement was procedurally fair, free from unlawful content, and satisfied the better off overall test. The FWC also concluded that the agreement was made in good faith and provided for proper terms and conditions. As a result, the FWC approved the Kempe Engineering Visy Paper Coolaroo and Reservoir Site Enterprise Agreement 2021.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established