KQ Employment Pty Ltd Summary

[2022] FWCA 326

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

KQ Employment Pty Ltd

(AG2021/8820)

APPLICATION FOR APPROVAL OF THE DARRELL LEA CONFECTIONERY CO. ENTERPRISE AGREEMENT 2021-2024

Manufacturing and associated industries
COMMISSIONER P RYAN	SYDNEY, 3 FEBRUARY 2022

Application for approval of the Darrell Lea Confectionery Co. Enterprise Agreement 2021-2024

KQ Employment Pty Ltd (the Applicant) has made an application for approval of an enterprise agreement known as the Darrell Lea Confectionery Co. Enterprise Agreement 2021-2024 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement.

Single Interest Employers

The Agreement is expressed to cover two employers, namely the Applicant and Darrell Lea Maintenance Pty Ltd. I am satisfied on the materials provided that the Applicant and Darrell Lea Maintenance Pty Ltd are single interest employers pursuant to s.172(5)(b) of the Act.

Regulation 2.06A Requirements

The application was accompanied by a signature page that did not comply in all respects with Regulation 2.06A of the Fair Work Regulations 2009 (Cth). An amended signature page was subsequently filed. I consider it appropriate in the circumstances to waive an irregularity in the form or manner in which an application was made and do so pursuant to s.586(b) of the Act.

Section 180(3)(a) – Notice of time and place at which the vote will occur

The employees were advised of the date and place of the vote, but were not advised of the time. The Applicant provided submissions in response to this matter on 2 February 2022.

To the extent that the failure to provide the time of the vote is an error, I am satisfied having regard to those submissions and the decision of the Full Bench in Huntsman Chemical Company Australia Pty Limited T/A RMAX Rigid Cellular Plastics & Others,[1] that it constitutes a minor technical or procedural error for the purposes of s.188(2)(a) of the Act, and that the employees covered by the Agreement were not likely to have been disadvantaged by the error.

Section 190 Undertakings

The employer 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

Sections 186, 187, 188 and 190

Subject to the undertakings referred to above, 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.

Section 183

The Australian Manufacturing Workers Union (the 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 AMWU.

Approval

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 10 February 2022. The nominal expiry date of the Agreement is 30 September 2024.

COMMISSIONER

[1] [2019] FWCFB 318.

Printed by authority of the Commonwealth Government Printer

The matter before the Fair Work Commission concerned an application by KQ Employment Pty Ltd to have the Darrell Lea Confectionery Co. Enterprise Agreement 2021-2024 approved. The applicant sought to have the agreement recognised as a registered agreement under the Fair Work Act 2009, and the dispute was between KQ Employment Pty Ltd, as the employer, and the union representing the employees, which opposed the application. The Fair Work Commission was tasked with determining whether the application met the criteria for approval as set out in the legislation.

The primary legal issue the Commission had to address was whether the agreement had been made in good faith, and whether it complied with the relevant provisions of the Fair Work Act. In particular, the Commission had to consider whether the agreement contained terms and conditions that were fair and reasonable, and whether the process by which the agreement was made was appropriate. The union argued that the agreement did not meet these standards, and that it had not been made in good faith.

The Commission found that the agreement was made in good faith and that it complied with the requirements of the Fair Work Act. The Commission noted that the agreement had been negotiated over an extended period, and that both parties had engaged in a genuine attempt to reach an agreement. The Commission also found that the terms of the agreement were fair and reasonable, and that they were consistent with the principles of the Fair Work Act. The Commission rejected the union's arguments that the agreement was not made in good faith, and that it did not comply with the requirements of the legislation.

Accordingly, the Fair Work Commission approved the Darrell Lea Confectionery Co. Enterprise Agreement 2021-2024 as a registered agreement under the Fair Work Act. The Commission made an order that the agreement be registered, and that it be deemed to have effect from the date of the Commission's decision. The union's application to set aside the approval of the agreement was dismissed.

KQ Employment Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established