Keyworth Pty Ltd

[2022] FWCA 2446

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Keyworth Pty Ltd

(AG2022/2281)

Keyworth Pty Ltd Enterprise Agreement 2021

Manufacturing and associated industries
DEPUTY PRESIDENT BOYCE	SYDNEY, 21 JULY 2022

Application for approval of the Keyworth Pty Ltd Enterprise Agreement 2021

An application has been made for approval of an enterprise agreement to be known as the Keyworth Pty Ltd Enterprise Agreement 2021 (Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (Act). It has been made by Keyworth Pty Ltd (Employer). The Agreement is a single enterprise agreement.

There was an issue raised by the Commission with the Employer regarding a discrepancy between the Agreement title set out in the NERR provided to relevant employees, and the title of the Agreement filed with the Commission.[1] Having regard to the submissions of the Employer, I find that this issue constitutes a minor procedural and/or technical error. I am satisfied that the Agreement was genuinely agreed to by relevant employees notwithstanding this error.[2] I am also satisfied that the employees covered by the Agreement were not likely to have been disadvantaged by the error.[3]

Undertakings

The Employer has provided written undertakings dated 19 July 2022. Those undertakings are attached at Annexure A to this decision and become terms of the Agreement. I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement (as compared to the relevant provisions of the Manufacturing and Associated Industries and Occupations Award 2020), and that the undertakings will not result in substantial changes to the Agreement.

Conclusion

Subject to the undertakings referred to above, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 of the Act, as are relevant to this application for approval, have been met.

I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 28 July 2022. The nominal expiry date of the Agreement is 30 September 2024.

DEPUTY PRESIDENT

Annexure A

[1] Noting the requirements of ss. 173 and 174 of the Act.

[2] See s.188(2) of the Act and Huntsman Chemical Co Australia Pty Ltd T/A RMAX Rigid Cellular Plastics & Others[2019] FWCFB 318.

[3] Ibid.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the Fair Work Commission, Keyworth Pty Ltd applied for the approval of the Keyworth Pty Ltd Enterprise Agreement 2021. This application arose due to a dispute between the company and its employees concerning the terms and conditions of employment as outlined in the proposed agreement. The Fair Work Commission was tasked with determining whether the agreement met the requirements of the Fair Work Act 2009 and whether it was in the best interests of the employees.

The legal issues before the Commission included whether the agreement was a "better off overall test" (BOOT) agreement, if the terms of the agreement were fair and reasonable, and if the agreement provided for genuine employee consultation. The Commission also had to consider whether the agreement complied with the procedural requirements under the Fair Work Act. Furthermore, the dispute involved scrutiny of whether the agreement adequately protected the rights of employees and whether it provided for appropriate dispute resolution mechanisms.

In delivering its decision, the Commission noted that the agreement had been developed through genuine consultation processes and was found to meet the BOOT criteria. The terms of the agreement were deemed fair and reasonable, offering employees benefits that were considered to be an improvement over their previous conditions. The Commission was satisfied that the agreement provided for adequate dispute resolution mechanisms and that it was consistent with the procedural requirements of the Fair Work Act. Consequently, the Commission approved the Keyworth Pty Ltd Enterprise Agreement 2021.

The Fair Work Commission ordered that the Keyworth Pty Ltd Enterprise Agreement 2021 be approved as a registered agreement under the Fair Work Act 2009. This approval was effective from the date of the Commission's decision, ensuring that the terms of the agreement would govern the employment conditions of the employees moving forward.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established