DECISION

Fair Work Act 2009
s.210 - Application for approval of a variation of an enterprise agreement

ConvaTech Pty Ltd
(AG2015/5923)

CONVATECH PTY LTD SOUTH AUSTRALIAN EMPLOYEE ENTERPRISE AGREEMENT 2013

Manufacturing and associated industries
SENIOR DEPUTY PRESIDENT O'CALLAGHAN	ADELAIDE, 4 NOVEMBER 2015

Application for variation of the ConvaTech Pty Ltd South Australian Employee Enterprise Agreement 2013.

[1] An application has been made to vary an enterprise agreement known as the ConvaTech Pty Ltd South Australian Employee Enterprise Agreement 2013 (the Agreement). The application was made pursuant to s.210 of the Fair Work Act 2009. It has been made by ConvaTech Pty Ltd (ConvaTech). The Agreement is a single enterprise agreement.

[2] At a telephone conference convened on 29 October ConvaTech confirmed a previous undertaking in relation to the Agreement and subsequently provided written advice dated 30 October 2015, as follows:

“Previous Undertakings
The Company commits to continue to apply the undertakings that were made during the approval of the original agreement. These undertakings were outlined in a letter from myself dated 18 February 2013 and can be provided upon request.

The undertaking made in relation to clause 15.3 Review of Wage Increases in the Event of a Recession is now redundant given the nature of the variation that has been applied for. Accordingly, this clause has been fully removed in the varied agreement.

Normal Roster
All employees covered by this agreement are currently engaged to work at the BHP Olympic Dam site near Roxby Downs. Employees work on a roster arrangement of 8 days on 6 days off over a two week roster cycle. A normal working day is 12 hours, meaning for the full roster swing employees work 96 hours, giving average weekly working hours of 48 hours. All forms of leave are paid based on these hours with employees accruing 192 hours annual leave per annum and 120 hours of personal/carer’s leave per annum.

It is not the intent of ConvaTech to change these roster arrangements, however, this is ultimately determined by our clients. If a change were to occur the Company will commit to ensuring that the employees remain better off overall in comparison to the Award.”

[3] As a result, the above undertaking is taken to be a term of the Agreement. A full copy of advice provided by the employer is attached to the Agreement as Attachment 1.

[4] I am satisfied that each of the requirements of ss.210 and 211 of the Act as are relevant to this application for approval have been met. I approve the variation which is attached to this decision as Annexure A.

[5] A consolidated version of the Agreement, as varied, is attached to this decision. The variation is approved and will operate from the date of this decision.

Printed by authority of the Commonwealth Government Printer

ANNEXURE A

In the case of ConvaTech Pty Ltd, the applicant sought a variation to the existing South Australian Employee Enterprise Agreement 2013. The application was heard by the Fair Work Commission, which was required to determine whether the proposed changes met the statutory criteria for an application under section 236 of the Fair Work Act 2009. The primary issue before the Commission was whether the application met the threshold requirements for the grant of a variation, specifically focusing on the need for an enterprise agreement to be in writing, to be made by the relevant employer, and to be for the purpose of facilitating a productive workplace relationship.

The Fair Work Commission examined the application to ensure that it was indeed in writing and made by the relevant employer. The Commission also considered the proposed changes' potential impact on facilitating a productive workplace relationship. In this instance, the Commission found that the application satisfied the formal requirements and that the proposed changes were likely to contribute to a productive workplace relationship. The applicant provided detailed evidence of the current working conditions and the necessity for the proposed changes, which the Commission found to be credible and sufficient to support the application.

After reviewing the evidence and arguments presented, the Commission concluded that the application met the statutory criteria and was in the best interest of facilitating a productive workplace relationship. Consequently, the application was approved, and the Fair Work Commission issued a certificate of registration for the new enterprise agreement, which incorporated the variations requested by the applicant. This decision allows the parties to implement the new terms and conditions as outlined in the amended agreement, promoting a more productive and efficient workplace environment.

ConvaTech Pty Ltd

DECISION

CaseChat Overview and Summary

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Background to the litigation

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Legal Principle Established