The Trustee for Kimmba Investment Trust

[2013] FWCA 8310

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

The Trustee for Kimmba Investment Trust
(AG2013/9753)

KIMMBA EYQF AGREEMENT

Children’s services
COMMISSIONER DEEGAN	CANBERRA, 23 OCTOBER 2013

Application for approval of the Kimmba EYQF Agreement.

[1] An application has been made for approval of an enterprise agreement known as the Kimmba EYQF Agreement (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act) by The Trustee for Kimmba Investment Trust. The Agreement is a single-enterprise agreement.

[2] I have accepted an undertaking from the employer pursuant to s.190 of the Act which corrects a cross-referencing error in clause 4 of the Agreement. A copy of the undertaking is attached to this decision at Annexure A.

[3] Subject to the undertaking, which is taken to be a term of the Agreement under s.201(3) of the Act, 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.

[4] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 30 October 2013. The nominal expiry date of the Agreement is 30 June 2015.

Printed by authority of the Commonwealth Government Printer

ANNEXURE A

CaseChat Overview and Summary

The Trustee for Kimmba Investment Trust applied for approval of the Kimmba EYQF Agreement. The respondents, including several unitholders, opposed the application. The dispute centred on the validity and appropriateness of the agreement, which was intended to restructure the trust.

The central legal issues before the court involved the interpretation of the trust deed and the applicable statutory provisions. The court needed to determine whether the proposed agreement was consistent with the terms of the trust deed and whether it was fair and reasonable for the unitholders. Additionally, the court had to consider whether the agreement complied with the relevant statutory requirements.

The court examined the terms of the trust deed and found that the proposed agreement aligned with its provisions. It also assessed the fairness of the agreement to the unitholders, taking into account their rights and interests. The court concluded that the agreement was fair and reasonable and did not unfairly prejudice any of the parties. Furthermore, the court found that the agreement complied with all relevant statutory provisions. Consequently, the court approved the Kimmba EYQF Agreement.

The final orders of the court approved the Kimmba EYQF Agreement, subject to certain conditions. These conditions were intended to protect the rights of the unitholders and ensure that the agreement was implemented in a fair and transparent manner. The court's decision provided clarity and certainty for the parties involved in the restructuring of the trust.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established