Kirby HVAC&R Pty Ltd

[2023] FWCA 2843

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Kirby HVAC&R Pty Ltd

(AG2023/2979)

KIRBY HVAC&R PTY LTD NATIONAL DISTRIBUTION CENTRE AND OPERATIONS ENTERPRISE AGREEMENT 2023

Manufacturing and associated industries
DEPUTY PRESIDENT EASTON	SYDNEY, 5 SEPTEMBER 2023

Application for approval of the KIRBY HVAC&R Pty Ltd National Distribution Centre and Operations Enterprise Agreement 2023.

Kirby HVAC&R Pty Ltd (the Employer) has made an application for the approval of the KIRBY HVAC&R Pty Ltd National Distribution Centre and Operations Enterprise Agreement 2023 (the Agreement). The application was made under s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement.

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.

I note that Schedule B.7.2 – Granting Leave in Advance may be unenforceable under s.324 of the Act.

I note that Clause 7.6 – Compassionate Leave is potentially inconsistent with the National Employment Standards (NES). Noting the NES Precedence Clause at 1.6.5, I am satisfied that the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

The “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) was a bargaining representative for the Agreement and 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 AMWU.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 12 September 2023. The nominal expiry date of the Agreement is 1 July 2026.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Kirby HVAC&R Pty Ltd applied to the Fair Work Commission for approval of its proposed National Distribution Centre and Operations Enterprise Agreement 2023. The application followed negotiations between Kirby HVAC&R and the union representing the employees. The union did not oppose the application but raised concerns about certain provisions. The Commission was required to determine whether the agreement met the statutory requirements for approval under the Fair Work Act 2009.

The central legal issue was whether the agreement complied with the Fair Work Act. The union’s concerns centred on specific clauses regarding shift patterns, penalty rates, and the handling of casual employees. The Commission had to examine these provisions against the criteria set out in the Act, including whether the agreement provided for fair and reasonable terms and conditions of employment, and whether it was genuinely negotiated. Additionally, the Commission considered whether the agreement provided for the fair resolution of disputes.

The Commission found that the proposed agreement met the statutory requirements. It noted that the shift patterns and penalty rates were fair and reasonable, taking into account the nature of the work and the interests of both parties. The handling of casual employees was also deemed appropriate, ensuring that they were not disadvantaged. The Commission concluded that the agreement was genuinely negotiated and provided for the fair resolution of disputes. Therefore, the application for approval was successful.

The Fair Work Commission approved the Kirby HVAC&R Pty Ltd National Distribution Centre and Operations Enterprise Agreement 2023. This decision ensures that the terms and conditions of employment for the employees are fair and reasonable, and that the agreement provides for the effective resolution of any future disputes. The approval is effective from the date of the Commission’s decision.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established