Agfa Gevaert Ltd T/A Agfa Gevaert Ltd

[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

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.

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.

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.’

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.

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.’

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.

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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CaseChat Overview and Summary

The matter before the Fair Work Commission concerned an application by Agfa Gevaert Limited for the approval of a national comprehensive agreement, referred to as the Agfa-Gevaert Limited National Comprehensive Agreement 2023. The application was brought under section 233 of the Fair Work Act 2009, seeking the Commission's approval of the agreement which was to cover a range of employment conditions applicable to employees throughout Australia. The dispute arose as a negotiation between the company and the relevant trade union, with the union seeking to ensure that the agreement met the standards set by the Fair Work Act, particularly in relation to the provisions that ensure employees are not disadvantaged compared to the applicable award or registered agreement.

The primary legal issues the Commission had to address were whether the proposed agreement complied with the requirements of the Fair Work Act, including whether it met the "better off overall test" and whether it was free from any unfair provisions. Additionally, the Commission needed to consider whether the agreement appropriately balanced the interests of both the employer and the employees, and whether it provided for fair and efficient workplace relations. The Commission also examined whether the agreement provided for appropriate dispute resolution mechanisms and whether it was consistent with the objectives of the Fair Work Act.

In reaching its decision, the Commission carefully reviewed the terms of the proposed agreement, taking into account submissions from both Agfa Gevaert Limited and the trade union. The Commission noted that the agreement contained provisions that met the better off overall test, ensuring that employees would not be worse off compared to the applicable award. Furthermore, the Commission found that the agreement contained appropriate mechanisms for resolving workplace disputes and that it did not contain any unfair provisions. The Commission concluded that the agreement was fair and would promote efficient workplace relations, thus meeting the statutory requirements for approval. The Commission approved the agreement under section 233 of the Fair Work Act.

The final orders of the Commission were that the Agfa-Gevaert Limited National Comprehensive Agreement 2023 be approved as a national workplace determination, effective from the date of the decision. This approval means that the agreement will apply to all employees of Agfa Gevaert Limited across Australia, subject to the terms and conditions set out in the agreement. The Commission's decision ensures that the agreement will operate as a legally binding instrument governing the employment conditions of the affected employees.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established