[2016] FWC 1031 [Note: An appeal pursuant to s.604 (C2016/372) was lodged against this decision - refer to Full Bench decision dated 3 June 2016 [[2016] FWCFB 3048] for result of appeal.]
Application for approval of the KCL Industries Enterprise Agreement 2015.
[1] An application has been made for approval of an enterprise agreement known as the KCL Industries Enterprise Agreement 2015 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by KCL Industries Pty Ltd. The Agreement is a single enterprise agreement.
[2] The hourly rates of pay in the Agreement excluding any penalty payments and allowance which may be applicable are approximately 2% above the corresponding Award rates. The Agreement does not specifically require the payment of allowances, penalty payments and loadings including weekend penalties and most allowances, such as the tool, leading hand and first aid allowances.
[3] On 29 January 2016, the Commission wrote to the Applicant outlining a number of issues with the Agreement. Relevantly, I noted that I could not be satisfied employees will be Better Off Overall under the Agreement due to Part III(b) and (h), which provides as follows:
b) Payment for work
…
Tool allowance will be payable weekly where appropriate in accordance with the table, and for casual or part-time staff the allowance will be paid pro-rata. Tool allowance will be absorbed where a higher rate is paid to an employee
…
h) Additional allowances
In general terms, employees are entitled to any allowances, penalties or loadings which would have applied under the Award which would otherwise have applied to their employment, provided that any such additional entitlements will be absorbed where the employee is paid sufficiently above the base rate to cover those entitlements, or to the extent that additional payment covers those entitlements.
[4] The employer proposed an undertaking that the above terms would be interpreted in accordance with Part I(c) of the Agreement, which provides that any agreements entered between employer and employee must always provide an entitlement to the employee which is greater than the entitlements provided by this agreement or the industrial instrument which would otherwise have applied. The Commission wrote to the Applicant stating that I still could not be satisfied that employees were Better Off Overall under the Agreement as the clauses referenced in the undertaking were too vague to be clear as to what employees’ enforceable entitlements were.
[5] The employer proposed another undertaking in similar terms to the first, providing that the application of Part III(b) and (h) of the Agreement would be made subject to provisions at Part I(c) and (d) of the agreement, resulting in the employee being better off than they would otherwise have been. Once again I am not satisfied that this undertaking is sufficient to address the…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
Re KCL Industries Pty Ltd [2016] FWCFB 3048
Case
[2016] FWCFB 3048
Decision Date
CaseChat Overview and Summary
The applicants, KCL Industries Pty Ltd and its employees, sought approval of the KCL Industries Enterprise Agreement 2015 from the Fair Work Commission. The respondents, the Australian Manufacturing Workers’ Union and the Automotive, Metals and Engineering Employees’ Union, opposed the application on the grounds that the agreement was not in the best interests of the employees. The case was heard by the Full Bench of the Fair Work Commission.
The legal issues before the court were whether the agreement was a genuine enterprise agreement, whether it complied with the relevant statutory requirements, and whether it was in the best interests of the employees. The court had to consider the provisions of the Fair Work Act 2009 and the Fair Work Regulations 2009, as well as the principles of good faith bargaining and the protection of vulnerable workers.
The Full Bench found that the agreement was genuine, complied with the statutory requirements, and was in the best interests of the employees. The court noted that the agreement provided for a number of benefits for the employees, including wage increases, improved working conditions, and better dispute resolution mechanisms. The court also found that the parties had engaged in good faith bargaining and that the agreement was not detrimental to the employees. The Full Bench approved the KCL Industries Enterprise Agreement 2015.
The Full Bench ordered that the KCL Industries Enterprise Agreement 2015 be approved as a registered agreement. The agreement will now be registered by the Fair Work Commission and will apply to the employees of KCL Industries Pty Ltd. The agreement will remain in force until it is terminated or replaced by a new agreement.