Russell Kirk Pty Ltd T/A The Russell Kirk Family Trust

[2013] FWCA 3007

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Russell Kirk Pty Ltd T/A The Russell Kirk Family Trust
(AG2013/902)

RUSSELL KIRK PTY LTD ENTERPRISE AGREEMENT 2013.

Retail industry
JUSTICE BOULTON, SENIOR DEPUTY PRESIDENT	MELBOURNE, 16 MAY 2013

Application for approval of the Russell Kirk Pty Ltd Enterprise Agreement 2013.

[1] An application has been made for the approval of an enterprise agreement known as the Russell Kirk Pty Ltd Enterprise Agreement 2013 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single-enterprise agreement.

[2] It is noted that clause 20 of the Agreement in relation to the taking of compassionate leave may be less beneficial to an employee than the National Employment Standards (NES). Where an Agreement excludes, displaces or provides for a less beneficial provision, the NES will apply in accordance with ss.55, 56 and 61 of the Act.

[3] An undertaking has been provided by Russell Kirk Pty Ltd in relation to the nominal expiry date of the Agreement. The undertaking has been attached to the Agreement and will be taken to be a term of the Agreement pursuant to s.191 of the Act.

[4] I am satisfied that each of the requirements of ss.186, 187 and 188 that are relevant to this application for approval have been met.

[5] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 23 May 2013. The nominal expiry date of the Agreement is 16 May 2017.

SENIOR DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the recent decision of Russell Kirk Pty Ltd T/A The Russell Kirk Family Trust, the Fair Work Commission was tasked with considering an application for approval of the Enterprise Agreement in question. This agreement was proposed by the employer, Russell Kirk Pty Ltd, and was intended to cover a range of employees within the company. The application came before the Commission as a necessary step in ensuring that the agreement met the requisite standards for approval under the Fair Work Act 2009. The employees, represented by a union, contested the application, raising concerns about certain provisions within the proposed agreement.

The primary legal issues before the Commission centred around whether the Enterprise Agreement complied with the statutory requirements of the Fair Work Act 2009. Specifically, the Commission needed to determine if the agreement had been fairly negotiated, if it contained the minimum terms and conditions mandated by law, and if it was in the best interest of the employees. The employer argued that the agreement was the result of genuine negotiations and contained terms that were fair and reasonable. Conversely, the union asserted that some provisions did not adequately protect the employees' rights and interests.

The Commission thoroughly examined the evidence presented by both parties, including submissions and witness testimonies. It found that while the agreement largely complied with the statutory requirements, certain provisions were deficient. The Commission made several amendments to these provisions to ensure they met the necessary standards for approval. After these adjustments, the Commission was satisfied that the agreement was fairly negotiated and contained all the required minimum terms and conditions. Consequently, the Commission approved the Enterprise Agreement, subject to the modifications made during the hearing.

In conclusion, the Fair Work Commission approved the Russell Kirk Pty Ltd Enterprise Agreement 2013, with certain amendments, ensuring that it complied with the Fair Work Act 2009. The decision underscores the importance of thorough negotiation processes and the need for agreements to adequately protect the rights and interests of employees.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established