CooperVision Australia Pty Ltd

[2022] FWCA 359

[2022] FWCA 359

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185 - Application for approval of a single-enterprise agreement

CooperVision Australia Pty Ltd

(AG2021/9290)

CooperVision Australia Pty Ltd Optical Employees Collective Agreement 2022

Storage services
COMMISSIONER PLATT	ADELAIDE, 7 FEBRUARY 2022

Application for approval of the CooperVision Australia Pty Ltd Optical Employees Collective Agreement 2022

1. An application has been made for approval of an enterprise agreement known as the the CooperVision Australia Pty Ltd Optical Employees Collective Agreement 2022 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act) by CooperVision Australia Pty Ltd (the Applicant). The agreement is a single enterprise agreement.

1. The matter was allocated to my Chambers on 28 January 2022.

1. On 2 February 2022, I conducted a telephone conference with the parties to seek clarification about aspects of the Agreement and invited the Applicant to address these matters including through the provision of an undertaking.

1. The Applicant has submitted an undertaking in the required form dated 4 February 2022. The undertaking deals with the following topics:

·   The nominal expiry date of the Agreement will be four years after the date of approval by the Commission.

·   Employees will be entitled to absence on a public holiday, notwithstanding the fact that the employer may reasonably request an employee to work on a public holiday.

·   The definition of shiftworker will be for the purposes of the additional week of annual leave provided for in the National Employment Standards (NES).

·   If an employee’s annual leave balance exceeds 20 days, the employer may require the employee to take annual leave to reduce the balance to 20 days (or less if the employee desires and agrees). Alternatively, an employee may choose to cash out their annual leave, but such cashing out must not result in the employee’s remaining entitlement to annual leave being less than 4 weeks.

·   Despite clause 44.2.2 of the Agreement, an employee will not have to be the sole carer at the time of the leave in order to take carer’s leave.

·   An employee must notify the employer of the taking of personal leave as soon as practicable (which may include a time after the leave has started).

·   When taking personal leave, carer’s leave or compassionate leave, employees are required to provide the employer with evidence that would satisfy a reasonable person.

·   Clause 44.8 of the Agreement has been deleted in its entirety.

·   Clause 45.1 of the Agreement has been amended to include stillbirth as a reason for compassionate leave.

1. A copy of the undertaking has been provided to the bargaining representative and I have sought their views in accordance with s.190(4) of the Act. The bargaining representative supported the undertaking.

1. The undertaking appears to meet the requirements of s.190(3) of the Act and I have accepted it. As a result, the undertakings are taken to be a term of the Agreement.

1. As the Agreement does not contain a flexibility term which meets the requirements of s.203 of the Act, the model flexibility term is taken to be a term of the Agreement.

1. I am satisfied that each of the requirements of ss.186, 187, 188 and 190 of the Act as are relevant to this application for approval have been met.

1. The Agreement is approved and, in accordance with s.54 of the Act, will operate from 7 days after the date of approval of the Agreement. The nominal expiry date is 7 February 2026.

COMMISSIONER

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