Kerry Logistics (Australia) Pty Ltd

[2010] FWA 3840

[2010] FWA 3840

FAIR WORK AUSTRALIA

DECISION

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

Kerry Logistics (Australia) Pty Ltd
(AG2010/9014)

DEPUTY PRESIDENT BARTEL ADELAIDE, 19 MAY 2010

Kerry Logistics (Australia) Pty Ltd Transport Enterprise Agreement 2010.

[1] An application for approval of an enterprise agreement known as the Kerry Logistics (Australia) Pty Ltd Transport Enterprise Agreement 2010 (the Agreement) has been made by Kerry Logistics (Australia) Pty Ltd (the employer). The application has been made pursuant to s.185 of the Fair Work Act 2009 (the Act) and is a single enterprise agreement.

[2] The application for approval identified that the Transport Workers Union (TWU) was a bargaining representative for the agreement, and identified Mr E as the contact person for the TWU. The application also notes that no instruments of appointment were given to the employer.

[3] A Form F18 Declaration of Employee Organisation in Support of Application for Approval of Enterprise Agreement also accompanied the application, completed by Mr E, who cited his occupation as Truck Driver. The Form F18 stated that he was a bargaining representative for members of the organisation and that he was entitled to represent the industrial interests of members of the organisation covered by the agreement.

[4] Clause 1.2 of the Agreement states that it is binding on the Company (the employer) and the Union (TWU). The Agreement is signed for and on behalf of the TWU by Mr E.

[5] On 11 May 2010, I provided the parties with written preliminary findings in relation to the application, which included concerns in relation to several provisions in the Agreement which may potentially breach s.55(1) of the Act or otherwise may result in the Agreement failing the Better Off Overall Test (BOOT). I also requested evidence of Mr E’s authority to act on behalf of the TWU and to bind it to the Agreement.

[6] The employer subsequently clarified its intention in relation to the provisions identified in the preliminary findings and indicated its willingness to give undertakings if required. In relation to the request for evidence of Mr E’s authority, the employer advised that “[Mr E] has signed the agreement on behalf of the staff members covered, it appears that the reference to the TWU is incorrect as he was not acting on behalf of the union.” 1

[7] This matter goes to the genuineness of the Agreement and in particular, the process of negotiation and representation of employees. If a hearing was held and I was persuaded that the defects in the application and the contents of the Form 18 did not undermine the genuineness of the employees’ agreement, I would still be obliged to consider whether the Agreement in its current form, with the TWU erroneously identified as a party to it, should be approved.

[8] I have concluded that it should not. The scope of the Agreement is fundamental to its operation and apart from misrepresenting the role of the TWU to current and future employees and the broader public, it is potentially prejudicial to the interests of the TWU. It would be inappropriate for Fair Work Australia to sanction the Agreement in these circumstances.

[9] The employer should consider carefully the content of the forms it provides to the Tribunal in future. There are a number of defects with the forms provided in the present matter in addition to the misrepresentation referred to above. Provisions within the Agreement that are less than the National Employment Standards were not identified, and neither were conditions that are less beneficial than the reference instrument(s). In addition, the employer should note the provisions pertaining to bargaining representatives in ss.176 and 177 of the Act.

[10] Should the employer recommence the negotiations for an agreement, I can indicate that while the undertakings given to the Tribunal are acceptable, it is appropriate that they are reflected within the substantive terms of any renegotiated agreement.

DEPUTY PRESIDENT

 1   Correspondence dated 14 May 2011

Printed by authority of the Commonwealth Government Printer

<Price code A, PR997294>