DECISION

Fair Work Act 2009
s.210—Enterprise agreement

Kuehne & Nagel Pty Ltd T/A Kuehne + Nagel
(AG2020/2422)

KUEHNE & NAGEL PTY LTD AND NATIONAL UNION OF WORKERS ENTERPRISE AGREEMENT 2018

Storage services
DEPUTY PRESIDENT MASSON	MELBOURNE, 3 SEPTEMBER 2020

Application for variation of the Kuehne & Nagel Pty Ltd and National Union of Workers Enterprise Agreement 2018.

[1] An application has been made for approval of a variation to the Kuehne & Nagel Pty Ltd and National Union of Workers Enterprise Agreement 2018 (the Agreement). The application was made by Kuehne & Nagel Pty Ltd T/A Kuehne + Nagel pursuant to section 210 of the Fair Work Act 2009 (the Act).

[2] The application seeks to vary various clauses of the Agreement. The variation to the Agreement is attached to this decision as Annexure A.

[3] I am satisfied that each of the requirements of ss.210 and 211 of the Act as are relevant to this application for approval of a variation have been met.

[4] The Applicant provided written undertakings to meet concerns that particular requirements of ss.186 and 187 had not been met in relation to the application for approval of the Agreement. The undertakings were accepted and the Agreement was approved on 27 February 2019. Those undertakings form part of the Agreement as varied.

[5] Pursuant to s.205(2) of the Act, the model consultation term prescribed by the Fair Work Regulations 2009 was taken to be a term of the Agreement. The model term forms part of the Agreement as varied.

[6] The variation is approved and the consolidated version of the Agreement, as varied, is attached to this decision.

[7] In accordance with s.216 of the Act, the variation operates from 3 September 2020.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The applicant, Kuehne & Nagel Pty Ltd trading as Kuehne + Nagel, applied to the Fair Work Commission to vary the Enterprise Agreement in place with the National Union of Workers. The dispute centred around the need to adjust the employment terms and conditions to accommodate changes in the business environment, particularly in response to the COVID-19 pandemic. Kuehne & Nagel sought to modify the Enterprise Agreement to allow for greater flexibility in working arrangements, changes to shift patterns, and adjustments to employee entitlements to better align with the evolving operational needs of the company.

The legal issues before the Commission were whether the proposed variations were procedurally and substantively valid. Procedurally, the Commission needed to ensure that the application was lodged in accordance with the Fair Work Act 2009. Substantively, the Commission had to assess whether the variations were in the best interests of the employees and whether they were fair and reasonable. The Commission also needed to consider the impact of the variations on the employees’ rights and entitlements under the existing Enterprise Agreement.

The Fair Work Commission found that the application was procedurally valid as it was lodged in accordance with the statutory requirements. In assessing the substantive validity, the Commission considered the evidence provided by both parties, the impact of the COVID-19 pandemic on the business, and the need for the variations to maintain operational efficiency. The Commission concluded that the proposed variations were fair and reasonable, taking into account the changed circumstances and the need for the business to adapt to new challenges. The variations were deemed to be in the best interests of the employees as they provided necessary flexibility while also safeguarding the employees' rights and entitlements.

The Fair Work Commission approved the variations to the Enterprise Agreement, allowing Kuehne & Nagel to implement the changes in working arrangements, shift patterns, and employee entitlements as proposed. The decision reflects the Commission's consideration of the unique circumstances presented by the pandemic and the need for businesses to adapt to maintain viability and protect jobs.

Kuehne & Nagel Pty Ltd T/A Kuehne + Nagel

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established