Agfa Gevaert Ltd T/A Agfa Gevaert Ltd

[2023] FWCA 883

[2023] FWCA 883

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Agfa Gevaert Ltd T/A Agfa Gevaert Ltd

(AG2023/482)

AGFA-GEVAERT LIMITED NATIONAL COMPREHENSIVE AGREEMENT 2023

Storage services
COMMISSIONER YILMAZ	MELBOURNE, 27 MARCH 2023

Application for approval of the Agfa-Gevaert Limited National Comprehensive Agreement 2023

1. An application has been made for approval of an enterprise agreement known as the Agfa-Gevaert Limited National Comprehensive Agreement 2023 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Agfa Gevaert Ltd T/A Agfa Gevaert Ltd. The Agreement is a single enterprise agreement.

1. I am satisfied that each of the requirements of ss.186, 187 and 188 are relevant to this application for approval and have been met. The Agreement does not cover all of the employees of the employer, however, taking into account the factors in ss.186(3) and (3A) I am satisfied that the group of employees was fairly chosen.

1. The Agreement lodged contained an error at clause 34. Clause 34.4.2 allows for the taking of leave as either a single 3 day period or two periods of 1 day. On 22 March the Employer provided confirmation in submissions that the intention of the employer is to allow for the taking of 3 periods of 1 day of compassionate leave. I am satisfied that the correction should be made and that it is appropriate to do so pursuant to s.586 of the Act. Clause 34.4.2 shall now be read as follows ‘An employee may take compassionate leave for a particular permissible occasion as a single continuous three-day period, or three separate periods of one day each, or any separate periods to which the employee and the Employer agree.’

1. I observe that certain provisions of the Agreement are likely to be inconsistent with the National Employment Standards (NES). However, noting clause 8 of the Agreement, I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

1. I observe that clause 37.4.1 of the Agreement provides that the employer, with agreement of the majority of employees and the Union, may substitute another day for any prescribed in this clause. I note that this is inconsistent with s.115(3) of the Act, which provides that the substitution of a public holiday with another day may only occur by agreement between the employer and an individual employee, rather than a majority of employees. On 22 March the Employer provided submissions giving an assurance that ‘that the substitution of a public holiday will only occur by agreement between the employer and each employee.’ Additionally, they requested that I ‘include a notation to this effect in the decision.’ I therefore believe that a correction should be made pursuant s.586 of the Act. Clause 37.4.1 shall now be read as follows ‘The employer, with agreement of an employee may substitute another day for any prescribed in this clause.’

1. The United Workers Union 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) I note that the Agreement covers the organisation.

1. The Agreement is approved and in accordance with s.54, will operate from 3 April 2023. The nominal expiry date of the Agreement is 31 January 2026.

COMMISSIONER

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