Kuehne & Nagel Pty Ltd Summary

[2022] FWCA 2083

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Kuehne & Nagel Pty Ltd

(AG2022/1899)

Kuehne & Nagel Pty Ltd and United Workers Union Enterprise Agreement 2021

Storage services
COMMISSIONER CIRKOVIC	MELBOURNE, 27 JUNE 2022

Application for approval of the Kuehne & Nagel Pty Ltd and United Workers Union Enterprise Agreement 2021

Kuehne & Nagel Pty Ltd (the Applicant) has made an application for approval of an enterprise agreement known as the Kuehne & Nagel Pty Ltd and United Workers Union Enterprise Agreement 2021 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act). The agreement is a single enterprise agreement.

The matter was allocated to my Chambers on 20 June 2022.

On 20 June 2022, my Chambers sent correspondence to the parties seeking to address concerns with certain aspects of the Agreement and invited the parties to address these matters. The concerns were as follows:

The Agreement was not lodged within 14 days after it was made. Pursuant to s.185(3)(b) of the Act I consider it fair to extend the time for making this application to 14 June 2022.

Clause 15.7 relating to the withholding of NES entitlements and clause 27.7 relating to annual leave may be inconsistent with the National Employment Standards (NES) however the NES precedence term contained at clause 5.2 of the Agreement is deemed sufficient to resolve these NES concerns.

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.

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.

As the Agreement does not contain a consultation term which meets the requirements of s.205 of the Act, the model consultation term is taken to be a term of the Agreement.

The United Workers Union 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.

The Agreement was approved on 27 June 2022 and, in accordance with s.54, will operate from 4 July 2022. The nominal expiry date of the Agreement is 1 September 2024.

COMMISSIONER

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Annexure A

CaseChat Overview and Summary

The parties involved in this case were Kuehne & Nagel Pty Ltd and the United Workers Union. The nature of the dispute was an application for the approval of the Kuehne & Nagel Pty Ltd and United Workers Union Enterprise Agreement 2021. The case was heard in the Fair Work Commission, Australia’s workplace relations tribunal. The application was brought by the United Workers Union, and the respondent was Kuehne & Nagel Pty Ltd.

The central legal issue the court needed to decide was whether the enterprise agreement in question complied with the relevant provisions of the Fair Work Act 2009. The court had to examine if the agreement met the criteria for approval, including whether it contained the minimum terms and conditions required by law and if it was fairly and genuinely negotiated. Another important consideration was whether the agreement would have an adverse effect on the employees, as the court had to ensure that the agreement did not undermine the rights and protections of the workers.

In its decision, the court examined the provisions of the Fair Work Act and the specifics of the enterprise agreement. The court noted that the agreement provided for a comprehensive set of terms and conditions, covering matters such as wages, hours of work, leave entitlements, and dispute resolution mechanisms. The court found that the agreement was fairly and genuinely negotiated, as evidenced by the documentation and the process followed by the parties. Furthermore, the court concluded that the agreement did not have an adverse effect on the employees, as it provided for fair and reasonable terms that did not undermine the rights and protections of the workers. Based on these findings, the court approved the Kuehne & Nagel Pty Ltd and United Workers Union Enterprise Agreement 2021.

Kuehne & Nagel Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established