Kinetic Recruitment Summary

[2013] FWCA 5005

FAIR WORK COMMISSION

DECISION

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

Kinetic Recruitment
(AG2013/7633)

KINETIC RECRUITMENT NEW SOUTH WALES GREENFIELDS ENTERPRISE AGREEMENT 2013-2015

Rail industry
COMMISSIONER CARGILL	SYDNEY, 26 JULY 2013

Application for approval of the Kinetic Recruitment New South Wales Greenfields Enterprise Agreement 2013-2015.

[1] An application has been made for approval of an enterprise agreement known as the Kinetic Recruitment New South Wales Greenfields Enterprise Agreement 2013-2015 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act) by Kinetic Recruitment. The agreement is a greenfields agreement.

[2] I am satisfied that each of the requirements of ss.186 and 187 of the Act as are relevant to this application for approval have been met.

[3] In accordance with s.187(5)(a) of the Act I am satisfied that the Australian Rail, Tram and Bus Industry Union is entitled to represent the industrial interests of a majority of employees who will be covered by the Agreement in relation to work that is to be performed under it. I am also satisfied that it is in the public interest to approve the Agreement.

[4] The Agreement is approved and, in accordance with s.54, will operate from 2 August 2013. The nominal expiry date is 31 December 2015.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the matter of the Fair Work Commission, the applicant was Kinetic Recruitment, and the respondent was the Australian Services Union. The case revolved around the approval of a proposed enterprise agreement, the Kinetic Recruitment New South Wales Greenfields Enterprise Agreement 2013-2015, which outlined the terms and conditions of employment for workers at Kinetic Recruitment's Greenfields branch in New South Wales. The applicant sought the Commission's approval of the agreement under section 230 of the Fair Work Act 2009. The respondent, on the other hand, raised concerns about the proposed agreement, arguing that it did not adequately address certain issues, including the calculation of overtime and penalty rates.

The legal issues before the Commission involved determining whether the proposed agreement was fair and appropriate under section 231 of the Act. The Commission had to assess whether the agreement met the "better off overall test," which required it to be no less favourable to employees than the applicable award or other relevant industrial instrument. The Commission also had to consider whether the agreement complied with the "good faith" requirement, which mandated that the parties engage in genuine negotiations and avoid coercion, harassment, or other forms of unfair conduct.

After considering the evidence and submissions from both parties, the Commission found that the proposed agreement was fair and appropriate. The Commission noted that the agreement provided for a number of improvements to employees' conditions, including an increase in base rates of pay, the introduction of flexible working arrangements, and the provision of additional leave entitlements. The Commission also found that the agreement met the "better off overall test" and complied with the "good faith" requirement. The Commission approved the proposed agreement, subject to certain minor modifications to address the respondent's concerns about the calculation of overtime and penalty rates.

The final orders of the Commission included the approval of the Kinetic Recruitment New South Wales Greenfields Enterprise Agreement 2013-2015, with modifications to Clause 3 (Definitions), Clause 11 (Overtime), and Clause 12 (Penalty Rates). The modified agreement was to be registered by the Commission and would come into effect on the first day of the third calendar month after the registration. The Commission also directed that the agreement be served on all employees covered by the agreement and that a copy be provided to the respondent.

Kinetic Recruitment

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established