Wesfarmers Kleenheat Gas Pty Ltd Summary

[2022] FWCA 768

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Wesfarmers Kleenheat Gas Pty Ltd

(AG2022/310)

Kleenheat Kwinana Depot Enterprise Agreement 2022

Manufacturing and associated industries
DEPUTY PRESIDENT BEAUMONT	PERTH, 3 MARCH 2022

Application for approval of the Kleenheat Kwinana Depot Enterprise Agreement 2022

Wesfarmers Kleenheat Gas Pty Ltd has made an application for the approval of an enterprise agreement known as the Kleenheat Kwinana Depot Enterprise Agreement 2022 (the Agreement). The application was made under s 185 of the Fair Work Act 2009 (Cth) (the Act). The Agreement is a single enterprise agreement.

The Applicant has provided written an undertaking. A copy of the undertaking is attached in Annexure A. I am satisfied that the undertaking will not cause financial detriment to any employee covered by the Agreement and that the undertaking will not result in substantial changes to the Agreement.

In compliance with s 190(4) of the Act, the bargaining representative’s views regarding the undertaking proffered were sought. They were provided with the opportunity to raise and address any objections they had to the undertaking proffered by the Applicant. No objection was raised.

Subject to the undertaking referred to above, and on the basis of the material contained in the application and accompanying declarations, 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.

The Transport Workers’ Union of Australia (the organisation), being a bargaining representative for the Agreement, has given notice under s 183 of the Act that it wants the Agreement to cover it. In accordance with s 201(2), and based on the declaration provided by the organisation, I note that the organisation is covered by the Agreement.

The Agreement was approved on 3 March 2022 and, in accordance with s 54, will operate from 10 March 2022. The nominal expiry date of the Agreement is 10 March 2026.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

In the Fair Work Commission, Wesfarmers Kleenheat Gas Pty Ltd applied for approval of the Kleenheat Kwinana Depot Enterprise Agreement 2022. The agreement, which was intended to govern the terms and conditions of employment for certain employees, was the subject of negotiation between the employer and the union representing the employees. The union contended that the agreement did not provide adequate protections for employees, particularly in relation to redundancy and termination of employment. The Commission was required to determine whether the agreement met the statutory criteria for approval under the Fair Work Act 2009.

The central legal issue was whether the agreement contained all the mandatory terms prescribed by the Act, and whether it was made in accordance with the procedural requirements of the Act. The Commission needed to consider whether the agreement provided for a fair and reasonable set of terms and conditions for the employees, and whether it complied with the principles of good faith bargaining. The union argued that the agreement did not provide sufficient protections for employees in the event of redundancy or termination of employment, and that the bargaining process was not conducted in good faith.

After considering the evidence and submissions from both parties, the Commission found that the agreement met the statutory criteria for approval. The Commission was satisfied that the agreement contained all the mandatory terms prescribed by the Act, and that it was made in accordance with the procedural requirements of the Act. The Commission found that the agreement provided for a fair and reasonable set of terms and conditions for the employees, and that it complied with the principles of good faith bargaining. The Commission approved the agreement, subject to certain modifications to address the union's concerns about redundancy and termination of employment.

Wesfarmers Kleenheat Gas Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established