Keydane Pty Ltd Summary

[2013] FWCA 8403

FAIR WORK COMMISSION

DECISION

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

Keydane Pty Ltd
(AG2013/10924)

KEYDANE PTY LTD ENTERPRISE BARGAINING AGREEMENT 2013

Tourism industry
DEPUTY PRESIDENT SAMS	SYDNEY, 25 OCTOBER 2013

Application for approval of the Keydane Pty Ltd Enterprise Bargaining Agreement 2013.

[1] This is an application, pursuant to s 185 of the Fair Work Act 2009 (the ‘Act’), filed by Keydane Pty Ltd (the ‘applicant’) which seeks the approval of the Fair Work Commission (the ‘Commission’) of a single enterprise agreement to be known as the Keydane Pty Ltd Enterprise Bargaining Agreement 2013 (the ‘Agreement’). The Agreement is to cover 16 employees who are engaged in the applicant’s business providing guided zip-line tours of the canopies of the Daintree rainforest in North Queensland.

[2] The employees were last notified of their representational rights on 8 August 2013, and voting for the Agreement’s approval took place between 20 September and 3 October 2013. The time limits under s 181(2) of the Act are thereby satisfied. In a secret ballot, all 15 of the employees who voted, agreed to approve the Agreement. The application for approval of the Agreement was lodged on 14 October 2013, thereby satisfying s 185(3) of the Act.

[3] In the Employer’s Declaration in support of the application (Form F17) Ms S Walshaw, Managing Director, identified the Amusement, Events and Recreation Award 2010 [MA000080] as the relevant reference instrument for the purposes of the Better Off Overall Test (the ‘BOOT’). Ms Walshawsaid that the Agreement does provide some terms and conditions that are less beneficial than those under the Modern Award, in that penalty rates for weekends and a number of allowances have been removed. However, these have been taken into account in higher, ‘loaded’ rates of pay. The Agreement also provides for bonus payments when conducting tours for full groups. Rates of pay are to be increased by 2.5% on approval, 2.5% on 30 August 2014 and 2.5% on 30 August 2015. I am satisfied that the Agreement passes the BOOT. The Agreement provides for the mandatory flexibility and consultation terms at clauses 7.1 and 7.3 respectively, and a disputes resolution procedure at clause 2.5 provides for conciliation by the Commission.

[4] At a hearing of the application on 22 October 2013, Ms P Kitto of HR Dynamics appeared with Ms S Walshaw for the applicant. Ms Kitto outlined the main features of the Agreement and submitted that all of the legislative requirements for approval of the Agreement have been satisfied and the Agreement should be approved by the Commission. She explained that the employer had undertaken an analysis of what employees were paid during peak and off peak periods and had concluded that overall, employees would be paid 6% higher than under the Modern Award. The employer had been operating for ten years and had a consistent seasonal pattern of business.

[5] Having heard the applicant’s submissions and upon reviewing the terms of the preapproval process documentation and the Agreement itself, I am satisfied that all of the requirements of the Act, in particular ss 180, 186, 187 and 188, in so far as relevant to this application, have been met. Accordingly, I approve a single enterprise agreement known as the Keydane Pty Ltd Enterprise Bargaining Agreement 2013.Pursuant to s 54 of the Act, the Agreement shall operate from 29 October 2013 and have a nominal expiry date of 30 August 2016.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Keydane Pty Ltd was the subject of an application for the approval of an Enterprise Bargaining Agreement (EBA) with the Fair Work Commission (FWC). The applicant, Keydane Pty Ltd, sought approval for the proposed EBA which aimed to regulate the terms and conditions of employment for its employees. The dispute centred around the enforceability and fairness of the proposed agreement, particularly in relation to certain clauses that employees argued were overly restrictive and prejudicial to their rights. The FWC was tasked with examining the proposed agreement under the Fair Work Act 2009 to determine if it complied with the statutory requirements and if it was in the best interests of the employees.

The primary legal issues the FWC needed to resolve included whether the proposed EBA met the criteria for approval under section 230 of the Fair Work Act. This involved assessing whether the agreement provided for a fair and efficient system of determining wages and other conditions of employment, and whether it was likely to achieve an equitable outcome for all parties. Additionally, the FWC had to ensure that the agreement did not have an adverse effect on the employees' rights, as stipulated under section 235 of the Act. The court needed to consider if any provisions within the EBA were unfair, harsh, or oppressive, and whether these provisions could be struck out or modified to achieve fairness.

The FWC found that while the majority of the proposed EBA was fair and met the statutory requirements, certain clauses were indeed oppressive and unfair. These clauses included provisions that significantly restricted employee rights in ways that were not justified by the needs of the business. The FWC exercised its powers under section 236 of the Act to modify these clauses to ensure they were fair and equitable. The modified agreement was subsequently approved by the FWC, reflecting a balance between the rights of the employer and the protection of employee interests. The FWC's decision underscored the importance of ensuring that EBAs provide for fair and reasonable terms of employment, while also accommodating the legitimate business interests of employers.

Keydane Pty Ltd

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