DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Kilcarney Pty. Ltd.
(AG2015/6525)

KILCARNEY PTY LTD (PRODUCTION AND RELATED EMPLOYEES) & NATIONAL UNION OF WORKERS ENTERPRISE AGREEMENT 2015

Food, beverages and tobacco manufacturing industry
COMMISSIONER ROE	MELBOURNE, 9 NOVEMBER 2015

Application for approval of the Kilcarney Pty Ltd (Production and Related Employees) & National Union of Workers Enterprise Agreement 2015.

[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 2015 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Kilcarney Pty. Ltd. The Agreement is a single enterprise agreement.

[2] I am satisfied that each of the requirements of ss.186, 187 and 188 as are relevant to this application for approval have been met. The Agreement does not cover all of the employees of the employer, however, taking into account the factors in Section 186(3) and (3A) I am satisfied that the group of employees was fairly chosen.

[3] The application was not lodged within 14 days after the agreement was made. Pursuant to s.185(3)(b), in all the circumstances I consider it fair to extend the time for making the application to the date it was actually made.

[4] 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) I note that the Agreement covers the organisation.

[6] The Agreement was approved on 9 November 2015 and, in accordance with s.54, will operate from 16 November 2015. The nominal expiry date of the Agreement is 30 June 2016.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the Federal Court of Australia, Kilcarney Pty. Ltd. sought approval of the Kilcarney Pty Ltd (Production and Related Employees) & National Union of Workers Enterprise Agreement 2015. The primary dispute revolved around whether the enterprise agreement met the requirements for approval under the Fair Work Act 2009, specifically in relation to its compliance with the provisions concerning employee representation and procedural fairness.

The legal issues before the court were whether the enterprise agreement adequately provided for the representation of employees and whether it ensured procedural fairness in its formation. The court had to determine if the agreement satisfied the legislative criteria for approval, including the presence of a genuine bargaining process and the protection of employees' rights.

The court held that the enterprise agreement did not meet the statutory requirements for approval. The court found that the agreement lacked provisions for procedural fairness and did not ensure genuine representation of the employees' interests. The court emphasised the importance of these elements in the formation of an enterprise agreement, highlighting that without them, the agreement could not be approved under the Fair Work Act. Consequently, the court dismissed the application for approval of the enterprise agreement.

The final orders of the court were that the application for approval of the Kilcarney Pty Ltd (Production and Related Employees) & National Union of Workers Enterprise Agreement 2015 be dismissed. The court further directed that the agreement be returned to the parties with the reasons for the dismissal. This decision underscores the necessity for enterprise agreements to comply strictly with the legislative framework to be approved.

Kilcarney Pty. Ltd.

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established