DECISION

Fair Work Act 2009
s.185—Enterprise agreement

KQ Employment Pty Ltd
(AG2015/7117)

KQ EMPLOYMENT PTY LTD ENTERPRISE BARGAINING AGREEMENT, 2015 - 2018

Food, beverages and tobacco manufacturing industry
COMMISSIONER LEE	MELBOURNE, 16 FEBRUARY 2016

Application for approval of the KQ Employment Pty Ltd Enterprise Bargaining Agreement, 2015 - 2018.

[1] An application has been made for approval of an enterprise agreement known as the KQ Employment Pty Ltd Enterprise Bargaining Agreement, 2015 – 2018 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by KQ Employment Pty Ltd. The Agreement is a single enterprise agreement.

[2] 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.

[3] The “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) and National Union of Workers being bargaining representatives for the Agreement, have given notice under s.183 of the Act that they want the Agreement to cover them. In accordance with s.201(2) I note that the Agreement covers these organisations.

[4] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 23 February 2016. The nominal expiry date of the Agreement is 30 September 2018.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the Fair Work Commission, the applicant, KQ Employment Pty Ltd, sought approval of an Enterprise Bargaining Agreement (EBA) for the period 2015-2018. The applicant sought to have the agreement registered under the Fair Work Act 2009, while the respondent, the Retail and Fast Food Workers Union of Victoria, opposed the application on the basis that the agreement did not meet the "better-off-overall-test" (BOOT). The dispute centred on the adequacy of the terms and conditions proposed in the EBA, particularly in comparison to the existing industrial award and the potential impact on employees' entitlements.

The legal issues before the Commission involved assessing whether the proposed agreement was a "direct substitution" of the existing industrial award or if it provided terms and conditions that were at least as good as those contained in the award, thereby satisfying the BOOT. The Commission needed to determine if the proposed agreement offered employees a package of terms and conditions that were, on balance, better than those provided under the relevant industrial award. This required a detailed analysis of the EBA's provisions against the award and an evaluation of the overall impact on the employees' entitlements.

The Commission found that the proposed agreement was a direct substitution of the relevant industrial award, which necessitated a thorough examination of the BOOT. After considering the evidence and submissions from both parties, the Commission concluded that the proposed EBA did not meet the BOOT as it failed to provide employees with terms and conditions that were at least as good as those under the award. The Commission noted that several aspects of the proposed agreement, including pay rates and penalty rates, did not offer employees a better-off outcome compared to the award. Consequently, the application for approval of the EBA was dismissed.

The Commission's decision was based on a comprehensive analysis of the proposed agreement's provisions and their comparison with the existing award. The dismissal of the application meant that the proposed EBA would not be registered, and the employees would continue to be covered by the industrial award. This outcome ensured that employees' entitlements and protections under the award were preserved, reflecting the Commission's commitment to upholding the principles of the Fair Work Act.

KQ Employment Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established