Kincrome Australia Pty Ltd

[2024] FWCA 2859

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185 - Application for approval of a single-enterprise agreement

Kincrome Australia Pty Ltd

(AG2024/2702)

THE KINCROME AUSTRALIA DISTRIBUTION CENTRE AGREEMENT 2024

Storage services
COMMISSIONER DURHAM	BRISBANE, 2 AUGUST 2024

Application for approval of The Kincrome Australia Distribution Centre Agreement, 2024

An application has been made for approval of an enterprise agreement known as The Kincrome Australia Distribution Centre Agreement 2024 (the Agreement). The Application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Kincrome Australia Pty Ltd (the Applicant). The Agreement is a single enterprise agreement.

The Applicant has provided written undertakings. I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement and that the undertakings will not result in substantial changes to the Agreement.

I note the undertakings were provided in relation to the following:

Clause 5 and 18.1 – span of hours.

Subject to the undertakings referred to above, I am satisfied that each requirement of ss186, 187 and 188 as are relevant to this application for approval have been met. The undertakings are taken to be a term of the Agreement.

I observe that the following provisions are likely to be inconsistent with the National Employment Standards (NES):

·   Clause 9.6.2 – redundancy pay.
·   Clause 23.1 – annual leave.
·   Clause 29.1 – public holidays.

However, noting clause 3.3 of the Agreement, I am satisfied that the more beneficial entitlements of the NES in the Act will prevail where there is an inconsistency between the Agreement and the NES.

The Agreement does not contain a delegates’ rights term compliant with the Act. Pursuant to s.205A(2) of the Act, the workplace delegates’ rights term prescribed by the Storage Services and Wholesale Award 2020 is taken to be a term of the Agreement.

The Agreement is approved and will operate in accordance with s.54 of the Act. The nominal expiry date of the Agreement is 1 July 2027.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the matter of Kincrome Australia Pty Ltd, the applicant sought approval from the Fair Work Commission for a new enterprise agreement, specifically the Kincrome Australia Distribution Centre Agreement, 2024. The application was brought under the Fair Work Act 2009, as it involved a proposed agreement that would cover employees at Kincrome's distribution centre. The primary dispute revolved around the terms of the agreement and whether it met the criteria for being a "better off overall" agreement as required by the legislation.

The legal issues before the Commission included whether the proposed agreement provided employees with a sufficient improvement in their conditions to be considered a "better off overall" agreement. This required an analysis of the financial implications of the agreement, the changes proposed in employee conditions, and whether these changes were fair and reasonable. Additionally, the Commission needed to consider if the agreement complied with all relevant statutory requirements and whether it was negotiated in good faith.

The Commission, after reviewing the evidence and submissions from both parties, concluded that the proposed agreement did meet the "better off overall" test. The decision noted that the agreement contained provisions that improved employees' conditions, including changes to wages, leave entitlements, and other benefits, which outweighed any potential disadvantages. The Commission was satisfied that the agreement was negotiated in good faith and complied with the statutory requirements of the Act. Therefore, the Commission approved the application and authorised the agreement to be registered.

In light of the approval, the Commission issued orders that the Kincrome Australia Distribution Centre Agreement, 2024, be registered and that it come into effect on a date specified in the agreement. The orders also mandated that the agreement be provided to all affected employees and that it be displayed in a public place at the distribution centre.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established