Kinetic Specialised Resources Pty Ltd

[2025] FWCA 575

[2025] FWCA 575

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Kinetic Specialised Resources Pty Ltd

(AG2024/5304)

KINETIC SPECIALISED RESOURCES ENTERPRISE AGREEMENT 2024

Passenger vehicle transport (non rail) industry
DEPUTY PRESIDENT DOBSON	BRISBANE, 13 FEBRUARY 2025

Application for approval of the Kinetic Specialised Resources Enterprise Agreement 2024

1. This decision deals with an application made for approval of an enterprise agreement known as the Kinetic Specialised Resources Enterprise Agreement 2024 (the Agreement). The Application was made pursuant to s.185 of the Fair Work Act 2009 (the Act) by Kinetic Specialised Resources Pty Ltd (the Applicant). The Agreement is a single enterprise agreement.

1. The Notice of Employee Representational Rights (NERR) distributed to employees initially appears to have had an incorrect employing entity and it was subsequently reissued to the same cohort. However, I am satisfied that the Agreement would have been genuinely agreed to but for the minor procedural departure from the prescribed form requirements of the NERR under s.174(1A) of the Act and that the employees covered by the Agreement were not likely to have been disadvantaged by this. Accordingly, I exercise the discretion conferred by s.188(5) of the Act.[1]

1. Correspondence was sent to the Employer by my Chambers raising concerns about casual hours of work, changes to living away from home allowance and loaded rates for casuals where casuals work solely on weekends. The Applicant provided a detailed explanation including detailed calculations on the basis of reasonably foreseeable rosters. The Applicant submitted that on the basis of the types and patterns of work reasonably foreseeable, that the BOOT could be satisfied. Following a series of emails between the parties, a mention was held on 12 February 2025. The Applicant has provided undertakings that regular reconciliations will be conducted to ensure that all casual employees will be paid any shortfall that may arise in respect to payments for hours of work including overtime and penalties. Whilst this will ensure they receive no less than the Award for such time worked, I note the Agreement has other benefits which ensure that the BOOT is satisfied.

1. 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.

1. The views of each person who the Fair Work Commission knows is a bargaining representative for the Agreement have been sought in relation to the undertakings.

1. Pursuant to s.190(3) of the Act, I accept the undertakings.

1. Subject to the undertakings referred to above, having regard to the Statement of Principles,[2] on the basis of the material contained in the application and accompanying declarations, 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.

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

·   Clause 5.2 – Maximum weekly hours.

·   Clause 20 – Cashing out of Annual Leave.

·   Clause 27.2 – Public Holidays.

However, noting clause 4.2(a) of the Agreement, I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

1. The Transport Workers Union (TWU) lodged a Form F18 statutory declaration giving 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 the Agreement covers the TWU.

1. The TWU raised concerns regarding the Better Off Overall Test (BOOT). I have considered those submissions and on the basis of the undertakings given, the circumstances that are reasonably foreseeable (as set out in paragraph [3] and the more beneficial terms of the Agreement, I am satisfied that the Agreement passes the BOOT.

1. The Agreement is approved and will operate in accordance with s.54 of the Act. The nominal expiry date of the Agreement is 30 June 2027.

DEPUTY PRESIDENT

[1] Huntsman Chemical Company Australia Pty Limited T/A RMAX Rigid Cellular Plastics & Others[2019] FWCFB 318 [117].

[2] Fair Work (Statement of Principles on Genuine Agreement) Instrument 2023.

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