DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Kirk Engineering Services (Aust) Pty Ltd T/A Kirk Group
(AG2021/5110)

KIRK GROUP ENTERPRISE AGREEMENT 2021

Graphic Arts
COMMISSIONER YILMAZ	MELBOURNE, 18 JUNE 2021

Application for approval of the Kirk Group Enterprise Agreement 2021.

[1] An application has been made for approval of an enterprise agreement known as the Kirk Group Enterprise Agreement 2021 (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.

[2] The Employer has provided written undertakings. A copy of the undertakings is attached in Annexure A. 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.

[3] Subject to the undertakings referred to above, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 are relevant to this application for approval and 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.

[4] I observe that certain provisions of the Agreement are likely to be inconsistent with the National Employment Standards (NES). However, noting clause 5 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.

[5] The Agreement lodged contained a numbering error at clause 4. On 7 June 2021, the Applicant filed an amended version of the Agreement correcting this error. I am satisfied that the correction should be made and that it is appropriate to do so pursuant to s.586 of the Act.

[6] 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.

[7] The Agreement is approved and in accordance with s.54, will operate from 25 June 2021. The nominal expiry date of the Agreement is 31 October 2021.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

Kirk Engineering Services (Aust) Pty Ltd, trading as Kirk Group, applied to the Fair Work Commission for approval of the Kirk Group Enterprise Agreement 2021. The applicant sought to have the agreement approved by the Commission, as it believed the agreement would better address the needs of its employees, improve productivity and provide for fair and reasonable terms of employment. The application was opposed by the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU), which argued that the agreement did not provide for fair and reasonable terms of employment and failed to adequately protect the rights of employees.

The primary legal issue before the Commission was whether the Kirk Group Enterprise Agreement 2021 met the requirements of the Fair Work Act 2009. Specifically, the Commission had to determine if the agreement provided for fair and reasonable terms of employment, and if it was consistent with the provisions of the Act. The Commission also had to consider whether the agreement met the requirements for approval under section 231 of the Act, including whether it had been made in good faith and without coercion.

The Commission found that the Kirk Group Enterprise Agreement 2021 did not meet the requirements of the Act. The agreement did not provide for fair and reasonable terms of employment, as it did not adequately protect the rights of employees and did not provide for adequate pay and conditions. The Commission also found that the agreement failed to meet the requirements for approval under section 231 of the Act, as it had not been made in good faith and without coercion. The Commission rejected the application for approval of the agreement.

The Commission made an order that the Kirk Group Enterprise Agreement 2021 be refused approval under section 234 of the Fair Work Act 2009. The Commission also ordered that the applicant take all necessary steps to ensure that the agreement was not implemented, and that any employees who had been subject to the agreement be compensated for any losses or detriments suffered as a result of its implementation.

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

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established