Kilcarney Pty Ltd

[2013] FWCA 8845

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Kilcarney Pty Ltd
(AG2013/9747)

KILCARNEY PTY LTD (PRODUCTION AND RELATED EMPLOYEES) & NATIONAL UNION OF WORKERS ENTERPRISE AGREEMENT 2013

Food, beverages and tobacco manufacturing industry
DEPUTY PRESIDENT KOVACIC	MELBOURNE, 11 NOVEMBER 2013

Application for approval of the Kilcarney Pty Ltd (Production and Related Employees) & National Union of Workers Enterprise Agreement 2013.

[1] An application has been made for approval of an enterprise agreement known as the Kilcarney Pty Ltd (Production and Related Employees) & National Union of Workers Enterprise Agreement 2013 (Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (Act). It has been made by Kilcarney Pty Ltd. The Agreement is a single-enterprise agreement.

[2] Subject to concerns that have been addressed by way of undertakings, 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.

[3] As noted, pursuant to s.190(3), I have accepted undertakings from Kilcarney Pty Ltd. In accordance with s.191(1) of the Act the undertaking are taken to be a term of the Agreement. A copy of the undertakings are attached to this decision.

[4] The Agreement does not contain a flexibility clause. Pursuant to s.202(4) of the Act, the model flexibility term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.

[5] The National Union of Workers, 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 18 November 2013. The nominal expiry date of the Agreement is 30 June 2014.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the Fair Work Commission, Kilcarney Pty Ltd, an applicant, sought approval of an enterprise agreement between itself and the National Union of Workers. The agreement, titled the Kilcarney Pty Ltd (Production and Related Employees) & National Union of Workers Enterprise Agreement 2013, aimed to regulate the terms and conditions of employment for production and related employees. The dispute centred around the fairness and validity of the proposed agreement, particularly in light of the parties' differing views on certain provisions.

The central legal issue before the court was whether the enterprise agreement met the criteria for approval under the Fair Work Act 2009. Specifically, the court had to determine if the agreement was genuinely bargained between the parties, if it contained appropriate dispute resolution mechanisms, and if it complied with the 'better off overall test'. Additionally, the court examined if the agreement provided for fair and reasonable terms and conditions of employment.

In its decision, the Fair Work Commission carefully reviewed the evidence presented by both parties. The Commission found that the agreement had been genuinely bargained between the parties, with both sides demonstrating a willingness to negotiate and reach a consensus on the terms. The Commission was satisfied that the agreement included adequate dispute resolution mechanisms and that it met the 'better off overall test', ensuring that employees were not worse off than under their previous conditions of employment. Furthermore, the Commission determined that the terms and conditions of employment provided for in the agreement were fair and reasonable.

Accordingly, the Fair Work Commission approved the Kilcarney Pty Ltd (Production and Related Employees) & National Union of Workers Enterprise Agreement 2013. The Commission's decision was based on the evidence presented and its finding that the agreement met the necessary criteria for approval under the Fair Work Act 2009. The agreement now governs the employment terms and conditions of production and related employees at Kilcarney Pty Ltd, as per the approved terms.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established