ConvaTech Pty Ltd

[2013] FWCA 1255

[2013] FWCA 1255

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement

ConvaTech Pty Ltd
(AG2013/4978)

CONVATECH PTY LTD SOUTH AUSTRALIAN EMPLOYEE ENTERPRISE AGREEMENT 2013

Manufacturing and associated industries
SENIOR DEPUTY PRESIDENT O'CALLAGHAN	ADELAIDE, 27 FEBRUARY 2013

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

[1] An application has been made for approval of an enterprise agreement known as the ConvaTech Pty Ltd South Australian Employee Enterprise Agreement 2013 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by ConvaTech Pty Ltd. The Agreement is a single-enterprise agreement.

[2] The employer has provided undertakings on 18 and 22 February 2013 in the following terms:

Clause 15.3 - Review of Wage Increases in the Event of a Recession

This clause was initially implemented to protect the viability of the Company during a period of economic downturn and subsequently the sustainability of our employee’s positions. The intent of the clause is not to reduce the wage rates already in place for employees, rather to withhold increasing them further at times when costs pressures are likely to be present.

However, to assist in passage through the Better Off Overall Test, the Company will make an undertaking not to apply this clause.

Clause 29 - Training Cost Recovery

This clause has been implemented to protect the Company against paying for non essential training and subsequently having the employee depart the Company’s employ soon after receiving this training.

It does place the following qualification on its application, which were contained within the clause:

There will be no requirement to repay the monies associated with training in the following circumstances:

● Where ConvaTech initiates the termination of employment; or

● Where ConvaTech requires the training be completed as either a compulsory program or a condition of ongoing employment.

To assist the BOOT, the Company will make an undertaking that this clause will not be applied as a provision of the proposed agreement. In such circumstances an employee will be issues an individualised letter coming to agreement on training costs, prior to the training being approved and taking place.

Clause 15.4 - Annualised Salary Arrangements

The Company makes an undertaking that any employee engaged on an annualised salary arrangement as set out in this clause, will not be worse off comparatively had that employee been engaged to fulfil that role under the wages provisions set out in the Agreement.

Clause 20.2.1 - BHP Olympic Dam - Roxy Downs

In reference to “The Company reserves the right to change the arrangement of hours for any employee at any time by providing 1 weeks’ notice. This includes changing the number of days worked each week and the hours worked each day.”

The Company makes an undertaking that if such circumstances should arise and in the event of a change to the roster, the Company will ensure the new roster arrangement and associated conditions, will be sufficient to pass the Better Off Overall Test when compared to the Award.

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

[4] I am satisfied that each of the requirements of ss.186, 187 and 188 of the Act as are relevant to this application for approval have been met.

[5] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 7 March 2013. The nominal expiry date of the Agreement is 6 March 2017.

SENIOR DEPUTY PRESIDENT

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