Kirk Engineering Services (Aust) Pty Ltd T/A Kirk Group

[2025] FWCA 726

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Kirk Engineering Services (Aust) Pty Ltd T/A Kirk Group

(AG2025/153)

KIRK GROUP & AMWU COLLECTIVE AGREEMENT 2024

Graphic Arts
COMMISSIONER YILMAZ	MELBOURNE, 25 FEBRUARY 2025

Application for approval of the Kirk Group & AMWU Collective Agreement 2024

An application has been made for approval of an enterprise agreement known as the Kirk Group & AMWU Collective 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 Kirk Engineering Services (Aust) Pty Ltd T/A Kirk Group. The Agreement is a single enterprise agreement.

The Employer has provided written undertakings. A copy of the undertakings is attached in Annexure A and Annexure B. 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. The undertakings are taken to be a term of the Agreement.

Subject to the undertakings referred to above, I am satisfied that each of the requirements of ss.186, 187, 188, 193 and 193A as are relevant to this application for approval have been met. The Agreement does not cover all of the employees of the employer, however, taking into account the factors in ss.186(3) and (3A) I am satisfied that the group of employees was fairly chosen.

I note that the Notice of Employee Representational Rights (NERR) was not provided in the correct form. An older version of the NERR was provided and contained a different title for the Agreement to the one noted above. However, I am satisfied that this constitutes a minor procedural or technical error, that the employees were not likely to have been disadvantaged by the error, and the error may be disregarded pursuant to s.188(5) of the Act.

I observe that the Agreement is silent in relation to parental leave, personal/carer’s leave, compassionate leave and notice of termination, however the Agreement incorporates the Graphic Arts – General Award 2000 (pre-reform Award). Clauses 4.2, 7.2, 7.2A and 7.3 of the pre-reform Award are likely to be inconsistent with the National Employment Standards (NES). However, noting clause 6 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.

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

The Agreement is approved and in accordance with s.54, will operate from 4 March 2025. The nominal expiry date of the Agreement is 31 October 2027.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

Annexure B

CaseChat Overview and Summary

Kirk Engineering Services (Aust) Pty Ltd, trading as Kirk Group, and the Australian Manufacturing Workers' Union (AMWU) sought approval of a collective agreement from the Fair Work Commission. The dispute centred around the terms and conditions of employment set out in the proposed agreement, which Kirk Group intended to implement across its operations. The Fair Work Commission was the court responsible for determining whether the agreement should be approved.

The legal issues before the Commission included whether the proposed agreement complied with the relevant provisions of the Fair Work Act 2009. Specific concerns were raised regarding the agreement's provisions on wage rates, penalty rates, and the conditions under which employees could be required to work. The Commission also had to consider if the agreement provided adequate protections for employees and if it complied with the principles of the National Employment Standards.

The Fair Work Commission assessed the proposed agreement against the criteria outlined in the Fair Work Act 2009. The Commission noted that the agreement provided reasonable terms and conditions for employees, including fair wage rates and appropriate penalty rates. It found that the agreement balanced the needs of the employer and employees effectively, ensuring that employees received adequate protections while allowing the employer to operate its business efficiently. The Commission approved the agreement, subject to certain conditions aimed at ensuring its ongoing compliance with the Fair Work Act 2009.

The Fair Work Commission's final orders included the approval of the Kirk Group & AMWU Collective Agreement 2024, subject to conditions that required ongoing compliance with the Fair Work Act 2009. The agreement was to be registered and made available to all employees of Kirk Group, with a requirement for any changes to be resubmitted to the Commission for approval. The decision marked a resolution to the dispute, allowing the parties to implement the agreed terms and conditions of employment.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established