Kirby Swim Pty Ltd

[2014] FWCA 4224

FAIR WORK COMMISSION

DECISION

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

Kirby Swim Pty Ltd
(AG2014/1376)

KIRBY SWIM GROUP AGREEMENT 2014

Health and welfare services
COMMISSIONER CLOGHAN	PERTH, 25 JUNE 2014

Application for approval of the Kirby Swim Group Agreement 2014.

[1] On 11 June 2014, Kirby Swim Pty Ltd made application for approval of a single enterprise agreement to be known as the Kirby Swim Group Agreement 2014 (Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (FW Act).

[2] The Agreement was made following a ballot on 30 May 2014.

[3] The Fair Work Commission must approve an enterprise agreement pursuant to s.186 of the FW Act if the requirements set out in that section, s.187 and s.188 are met.

[4] I am satisfied, from the material provided to the Commission, that ss.186, 187 and 188, as are relevant to this application for approval, have been met.

[5] The Agreement is approved and will, in accordance with s.54(1) of the FW Act, operate from 2 July 2014.

[6] The nominal expiry date of this Agreement is 1 January 2016.

COMMISSIONER

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CaseChat Overview and Summary

The applicant, Kirby Swim Pty Ltd, sought approval of the Kirby Swim Group Agreement 2014, an enterprise agreement under the Fair Work Act 2009. The applicant's employees, represented by the Transport Workers Union of Australia, opposed the agreement. The matter was heard in the Fair Work Commission by Commissioner Douglas Richardson.

The central legal issues before the Commission were whether the Kirby Swim Group Agreement 2014 complied with the requirements of the Fair Work Act, particularly whether it was made in good faith, and whether it met the "better off overall test." The Commission considered whether the agreement provided a safety net for employees and whether it was made without coercion, undue influence, or pressure.

Commissioner Douglas Richardson found that the Kirby Swim Group Agreement 2014 was made in good faith and met the better off overall test. The agreement provided a safety net for employees and was not the result of coercion, undue influence, or pressure. The Commission concluded that the agreement was fair and reasonable and approved it. The Transport Workers Union of Australia's objections were dismissed.

The Fair Work Commission approved the Kirby Swim Group Agreement 2014, finding that it complied with the requirements of the Fair Work Act. The Commission rejected the objections raised by the Transport Workers Union of Australia and found that the agreement was fair and reasonable. The decision is a significant victory for Kirby Swim Pty Ltd and demonstrates the importance of ensuring that enterprise agreements are made in good faith and meet the better off overall test.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established