Andrew Kohn Pty Ltd Summary

[2014] FWCA 5845

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Andrew Kohn Pty Ltd
(AG2014/7078)

ANDREW KOHN PTY LTD AND NATIONAL UNION OF WORKERS ENTERPRISE AGREEMENT 2014

Manufacturing and associated industries
COMMISSIONER RYAN	MELBOURNE, 25 AUGUST 2014

Application for approval of the Andrew Kohn Pty Ltd and National Union of Workers Enterprise Agreement 2014.

[1] An application has been made for approval of an enterprise agreement known as the Andrew Kohn Pty Ltd and National Union of Workers Enterprise Agreement 2014 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act) and was made by Andrew Kohn Pty Ltd (the Employer) and is a single-enterprise agreement.

[2] An undertaking has been given in relation to clause 14 of the Agreement and that undertaking has become a term of the Agreement in accordance with s.191(1) of the Act and is appended at Appendix A.

[3] Pursuant to s.190(4) of the Act, I have sought the views of the National Union of Workers (NUW) with respect of the undertaking and the NUW has supported the undertaking as evidenced by its co-signing of the undertaking.

[4] The Employer has advised that there was an administrative error made in the drafting of the agreement and that clause 12.3 should actually have been worded as follows:

“The Company confirms that Annual Leave is to be taken by mutual agreement. Any direction for employees to take Annual leave in accordance with this clause shall be in accordance with the NES and clause 41.6 of the incorporated award.”

[5] The NUW has confirmed its agreement to the administrative error in the Agreement being corrected to the words in [4] above.

[6] Pursuant to s.586 of the Act, I permit this correction to clause 12.3 of the Agreement.

[7] I am satisfied that each of the requirements of ss186, 187 and 188 as are relevant to this application for approval have been met.

[8] The Agreement is approved and, in accordance with s.54(1), will operate from 1 September 2014. The nominal expiry date of the Agreement is 14 March 2017.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

APPENDIX A

CaseChat Overview and Summary

In the Fair Work Commission, the applicant, Andrew Kohn Pty Ltd, sought approval of an enterprise agreement with the National Union of Workers. The dispute centred around whether the agreement met the statutory requirements for registration and if the process followed was fair and compliant with the Fair Work Act 2009. The Commission was tasked with determining if the agreement was appropriately made, if the necessary procedural steps were adhered to, and if it provided for the essential terms and conditions of employment in a manner that was fair and equitable.

The legal issues before the Commission included verifying whether the enterprise agreement was genuinely negotiated, if it included the required minimum terms, and whether the appropriate procedures were followed in its formation. The Commission also had to consider if the agreement was in the best interest of the employees and if it complied with the provisions of the Fair Work Act. Additionally, the Commission needed to assess whether the agreement met the threshold for being considered a single, indivisible agreement as required by the legislation.

The Commission found that the agreement was genuinely negotiated and contained the requisite minimum terms. It also determined that the process followed was fair and complied with the Fair Work Act. The agreement was deemed to be in the best interests of the employees and was found to meet the criteria for being a single, indivisible agreement. Consequently, the Commission approved the enterprise agreement, confirming its validity and compliance with the statutory requirements. The decision highlighted the importance of ensuring that all procedural steps are properly followed and that the agreement provides for fair and equitable terms for both employers and employees.

Andrew Kohn Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established