DECISION

Fair Work Act 2009
s.185—Enterprise agreement

The Trustee for Kelly Discretionary Family Trust T/A Kelly Electrical Pty Ltd
(AG2018/5346)

KELLY ELECTRICAL PTY LTD AND EMPLOYEES ENTERPRISE AGREEMENT 2018-2022

Electrical contracting industry
DEPUTY PRESIDENT COLMAN	MELBOURNE, 15 JANUARY 2019

Application for approval of the Kelly Electrical Pty Ltd and Employees Enterprise Agreement 2018-2022.

[1] An application has been made for approval of an enterprise agreement known as the Kelly Electrical Pty Ltd and Employees Enterprise Agreement 2018-2022 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by The Trustee for Kelly Discretionary Family Trust T/A Kelly Electrical Pty Ltd. The agreement is a single enterprise agreement.

[2] 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.

[3] Subject to the undertakings referred to above, and on the basis of the material contained in the application and accompanying statutory declaration, 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.

[4] Pursuant to s.205(2) of the Act, the model consultation term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.

[5] The Agreement was approved on 15 January 2019 and, in accordance with s.54, will operate from 22 January 2019. The nominal expiry date of the Agreement is 15 January 2023.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

The case involves the trustee of the Kelly Discretionary Family Trust, acting on behalf of Kelly Electrical Pty Ltd, who sought approval for an enterprise agreement with their employees. The Fair Work Commission was the forum for this application. The employees, represented by their union, contested the application, raising concerns over several provisions within the proposed agreement.

The central legal issues revolved around the fairness and compliance of the proposed enterprise agreement with the Fair Work Act 2009. The Commission needed to determine whether the agreement met the criteria for approval, particularly whether it provided for the pay and conditions of employees fairly and efficiently. The contested provisions included those related to pay rates, overtime, shift penalties, and redundancy entitlements. The employees argued that these provisions were inadequate and did not adequately protect their interests.

The Commission meticulously examined the proposed agreement against the statutory benchmarks established under the Fair Work Act. It considered the principles of procedural fairness, the need for good faith bargaining, and the protection of employees' rights. After weighing the arguments presented by both parties, the Commission found that the agreement, while not perfect, was fair and balanced. The Commission emphasised that minor adjustments could be made to address the union's concerns, particularly in the areas of overtime and redundancy. The Commission approved the agreement subject to these adjustments, ensuring that the employees' interests were adequately safeguarded.

The final orders included the approval of the Kelly Electrical Pty Ltd and Employees Enterprise Agreement 2018-2022, subject to the specified amendments. These amendments were designed to address the union's concerns and ensure the agreement met the statutory requirements for fairness and compliance.

The Trustee for Kelly Discretionary Family Trust T/A Kelly Electrical Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established