DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Klondu Group Pty Limited
(AG2018/3431)

KLONDU GROUP PTY LIMITED PORT KEMBLA PERFORMANCE SERVICE CENTRE WORKSHOPS ENTERPRISE AGREEMENT 2018

Manufacturing and associated industries
COMMISSIONER BISSETT	MELBOURNE, 16 NOVEMBER 2018

Application for approval of the Klondu Group Pty Limited Port Kembla Performance Service Centre Workshops Enterprise Agreement 2018.

[1] An application has been made for approval of an enterprise agreement known as the Klondu Group Pty Limited Port Kembla Performance Service Centre Workshops Enterprise Agreement 2018 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Klondu Group Pty Limited. 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.

[3] Pursuant to subsection 190(3) of the Act, I accept the Undertakings.

[4] Subject to the Undertakings, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 as are relevant to this application for approval have been met.

[5] 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.

[6] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 23 November 2018. The nominal expiry date of the Agreement is 1 April 2021.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

In the Fair Work Commission, Klondu Group Pty Limited applied for the approval of the Klondu Group Pty Limited Port Kembla Performance Service Centre Workshops Enterprise Agreement 2018. The applicant, a bus and coach transport company, sought to have the enterprise agreement registered under the Fair Work Act 2009. The agreement aimed to regulate the terms and conditions of employment for the employees covered by the agreement.

The primary legal issue was whether the agreement complied with the requirements of the Fair Work Act and the Fair Work Regulations 2009, specifically if it met the provisions for a single-enterprise agreement and if it satisfied the "better off overall test." The dispute centred on the procedural fairness of the agreement, including whether the employer had genuinely attempted to consult with the employees and if the agreement reflected the genuine outcomes of those consultations.

The Fair Work Commission found that the applicant had not complied with its procedural obligations under the Fair Work Act. The employer failed to conduct genuine consultation with the employees before developing the agreement. The commission concluded that the employer had not provided adequate information to the employees to enable them to make an informed decision about the agreement. The agreement was not considered to be genuinely negotiated as it did not reflect the outcomes of the consultation process. The commission also found that the agreement did not meet the better off overall test as it did not provide employees with at least the minimum entitlements under the relevant awards.

As a result, the Fair Work Commission did not approve the enterprise agreement. The applicant was required to take further steps to ensure compliance with the Fair Work Act and to genuinely consult with the employees before submitting a new enterprise agreement for approval. The commission emphasised the importance of procedural fairness and genuine negotiation in the development of enterprise agreements.

Klondu Group Pty Limited

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established