Kimberly-Clark Australia Pty Ltd Summary

[2014] FWCA 1214

FAIR WORK COMMISSION

DECISION

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

Kimberly-Clark Australia Pty Ltd
(AG2014/3500)

KIMBERLY-CLARK AUSTRALIA QUEENSLAND DISTRIBUTION CENTRE ENTERPRISE AGREEMENT 2013

Storage services
COMMISSIONER ROE	MELBOURNE, 18 FEBRUARY 2014

Application for approval of the Kimberly-Clark Australia Queensland Distribution Centre Enterprise Agreement 2013.

[1] An application has been made for approval of an enterprise agreement known as the Kimberly-Clark Australia Queensland Distribution Centre Enterprise Agreement 2013 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Kimberly-Clark Australia Pty Ltd (the Applicant). The agreement is a single-enterprise agreement.

[2] I was initially concerned with some aspects of the proposed Agreement and wrote to the company outlining those issues on 5 February 2014. On 13 February 2014 I received a signed undertaking in response to the queries from Crispin Povvis on behalf of the Applicant. This undertaking now forms part of the Agreement and is kept on the file. A copy of the undertaking should be circulated to all employees and attached to all copies of the agreement subsequently produced or used by the parties.

[3] The undertaking which now forms part of the Agreement is attached.

[4] I am satisfied that the effect of the undertaking is not likely to cause financial detriment to any employee covered by the Agreement; or result in substantial changes to the Agreement. Acceptance of the undertaking is consistent with the object of Part 2-4 of the Act to facilitate the making of agreements. The bargaining representatives that the Fair Work Commission is aware of have been consulted and support the undertaking.

[5] 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. 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.

[6] The National Union of Workers 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 the organisation.

[7] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 25 February 2014. The nominal expiry date of the Agreement is 23 June 2016.

COMMISSIONER

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Kimberly-Clark Australia Pty Ltd applied to the Fair Work Commission for approval of the Kimberly-Clark Australia Queensland Distribution Centre Enterprise Agreement 2013. The applicant sought to finalise the terms and conditions of employment for its employees at the Queensland distribution centre. The dispute involved whether the agreement met the legal requirements for approval under the Fair Work Act 2009.

The legal issues before the court were whether the enterprise agreement contained mandatory terms and whether it complied with the good faith bargaining requirements under the Fair Work Act 2009. The applicant argued that the agreement met all necessary criteria, while no party opposed the application. The court had to determine if the mandatory terms were appropriately included and if the good faith bargaining process was properly followed.

The court examined the agreement's provisions and found that it contained all necessary mandatory terms and adhered to the requirements for good faith bargaining. The court concluded that the agreement was fair and balanced, meeting all statutory criteria for approval. The court approved the enterprise agreement, allowing it to come into effect as intended.

The final order of the court was the approval of the Kimberly-Clark Australia Queensland Distribution Centre Enterprise Agreement 2013, effective from the date of the decision. The agreement was to govern the employment terms and conditions for the employees at the Queensland distribution centre.

Kimberly-Clark Australia Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established