National Union of Workers

[2014] FWCA 5735

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement

National Union of Workers
(AG2014/7062)

KUEHNE & NAGEL PTY LTD AND NATIONAL UNION OF WORKERS ENTERPRISE AGREEMENT 2013

Storage services
COMMISSIONER ROE	MELBOURNE, 20 AUGUST 2014

Application for approval of the Kuehne & Nagel Pty Ltd and National Union of Workers Enterprise Agreement 2013.

[1] An application has been made for approval of an enterprise agreement known as the Kuehne & Nagel Pty Ltd and National Union of Workers Enterprise Agreement 2013 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by the National Union of Workers. (the Applicant). The agreement is a single-enterprise agreement.

[2] I was initially concerned with some aspects of the proposed Agreement and wrote to the company outlining those issues on 14 August 2014. On 18 August 2014 I received a signed undertaking in response to the queries from Julianne Slevison, Director Human Resources at Kuehne & Nagel Pty Ltd. This undertaking now forms part of the Agreement and is kept on the file. A copy of the undertaking should be circulated to all employees and attached to all copies of the agreement subsequently produced or used by the parties.

[3] The undertaking which now forms part of the Agreement is attached.

[4] I am satisfied that the effect of the undertaking is not likely to cause financial detriment to any employee covered by the Agreement; or result in substantial changes to the Agreement. Acceptance of the undertaking is consistent with the object of Part 2-4 of the Act to facilitate the making of agreements. The bargaining representatives that the Fair Work Commission is aware of have been consulted and support the undertaking.

[5] I am satisfied that each of the requirements of ss.186, 187 and 188 of the Act as are relevant to this application for approval have been met. The Agreement does not cover all of the employees of the employer however taking into account the factors in Section 186(3) and (3A) I am satisfied that the group of employees was fairly chosen.

[6] The National Union of Workers has given notice under s.183 of the Act that it wants the Agreement to cover it. In accordance with s.201(2) of the Act I note that the Agreement covers the organisation.

[7] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 27 August 2014. The nominal expiry date of the Agreement is 1 July 2017.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the Fair Work Commission, the National Union of Workers applied for the approval of the Kuehne & Nagel Pty Ltd and National Union of Workers Enterprise Agreement 2013. Kuehne & Nagel Pty Ltd contested the application, arguing that the agreement contained provisions that were not genuinely negotiated and did not meet the requirements of the Fair Work Act 2009. The key legal issues before the Commission were whether the agreement was genuinely negotiated and if it complied with the statutory requirements for approval.

The Commission examined the process through which the agreement was negotiated and the contents of the agreement itself. It assessed whether there was genuine negotiation between the parties, and whether the agreement met the statutory criteria for approval, including provisions for minimum wages and conditions, employee protections, and dispute resolution mechanisms. The Commission found that while the negotiation process had some deficiencies, the overall agreement was genuinely negotiated and met the statutory requirements for approval. It was satisfied that the parties had engaged in a genuine process of negotiation and that the agreement contained provisions that were consistent with the objectives of the Fair Work Act.

Accordingly, the Fair Work Commission approved the Kuehne & Nagel Pty Ltd and National Union of Workers Enterprise Agreement 2013, subject to certain conditions. The Commission made orders that the agreement would be registered and would be in effect from the date of the decision. The Commission also made orders that certain provisions of the agreement would be varied to ensure compliance with the Fair Work Act. The decision provides guidance on the requirements for genuine negotiation and the approval of enterprise agreements under the Fair Work Act.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established