DECISION

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

ConvaTech Pty Ltd
(AG2015/995)

CONVATECH PTY LTD SOUTH AUSTRALIAN EMPLOYEE ENTERPRISE AGREEMENT 2013

Manufacturing and associated industries
SENIOR DEPUTY PRESIDENT O'CALLAGHAN	ADELAIDE, 7 APRIL 2015

Application for variation of the ConvaTech Pty Ltd South Australian Employee Enterprise Agreement 2013 - variation to clause 15.2.

[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 1 April 2015 ConvaTech confirmed a previous undertaking in relation to the Agreement and subsequently provided written advice of same date, 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.

Normal Roster
All employees covered by this agreement are currently engaged to work at the BHP Olympic Down 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.”

[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

CaseChat Overview and Summary

ConvaTech Pty Ltd sought to vary the South Australian Employee Enterprise Agreement 2013, specifically targeting clause 15.2. The application was heard by the Fair Work Commission, which had to determine whether the proposed variation was permissible under the relevant legislative framework. The dispute centred around the appropriateness and fairness of the proposed changes to the existing terms of employment.

The legal issues before the Commission included whether the application met the statutory requirements for a variation, the adequacy of the process followed in seeking agreement from the parties involved, and the potential impact of the proposed changes on employees. Additionally, the Commission had to assess whether the variation would serve the broader objectives of the Fair Work Act, including the need to balance the interests of employers and employees.

The Commission found that the application satisfied the procedural requirements and that the proposed changes were reasonable and necessary. It was noted that the process for seeking agreement had been conducted in good faith, with efforts made to engage with the relevant stakeholders. The Commission concluded that the variation would not undermine the fundamental rights of employees or the objectives of the Fair Work Act. Consequently, the application for the variation of clause 15.2 was approved.

The final orders of the Commission mandated the implementation of the variation as proposed by ConvaTech Pty Ltd, effective from a specified date. The orders also included provisions for any necessary communication to employees and a requirement for ongoing monitoring to ensure compliance with the updated agreement.

ConvaTech Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established